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A' 


PROCEEDINGS  AND  REPORT 

OF 

SPECIAL  WAR  DEPARTMENT  BOARD 


ON 


COURTS-MARTIAL  AND  THEIR 
PROCEDURE 


July  17, 1919 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1915 


PROCEEDINGS  AND  REPORT 

OF 

SPECIAL  WAR  DEPARTMENT  BOARD 

ON 

COURTS-MARTIAL  AND  THEIR 
PROCEDURE 


July  17,  1919 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1919 


PROCEEDINGS  AND  REPORT  OF  SPECIAL  WAR  DEPARTMENT  BOARD  ON 
COURTS-MARTIAL  AND  THEIR  PROCEDURE. 


WASHINGTON,  D.  C., 

July  17,  W19. 

PROCEEDINGS   AND   REPORT  OF   A   BOARD   OF  OFFICERS   CONVENED  PURSUANT 
TO  THE  FOLLOWING   LETTER  I 

Wk/lms/368 

A.  G.  250.03. 

MAY  14,  1919. 

From:       The  Adjutant  General  of  the  Army. 
To:  Ma.j.  (Jen.  Francis  J.  Kernan,  United  States  Army,  Office  of  the  Chief 

of  Staff,  Washington  D.  C. 
Subject :  Board  of  Officers. 

1.  A  hoard  of  officers  to  consist  of  Maj.  Gen.  Francis  J.  Kernan,  United  States 
Army,  Maj.  Gen.  John  F.  O'Kyan,  New  York  National  Guard,  Lieut.  Col.  Hugh 
W.  Ogden,  judge  advocate,  is  appointed  to  meet  in  this  city  at  the  call  of  the 
senior  member. 

2.  The  board  will  consider  all  recommendations  looking  to  the  improvement 
of  the  present  system  of  military  justice,  and  recommend  to  the  War  Depart- 
ment any  changes  which  they  believe  to  be  necessary  in  the  Articles  of  War, 
and  in  the  methods  of  procedure  which   now  obtain  in  the  administration  of 
military  justice  in  the  Army   so  far  as  such  justice  is  administered   through 
the  agency  of  the  authorized  courts-martial.     The  board  is  authorized  to  call 
for  any  and  all  records  in  the  War  Department  bearing  upon  this  subject. 

3.  You  will  submit  to  this  office  the  name  of  an  officer  with  a  view  to  his 
detail  as  recorder  of  the  board.    The  recorder  will  not  vote. 

4.  It  is  desired  that  the  board  expedite  its  proceedings  so  that  they  might 
be  available   for  the  consideration   of  the   Secretary   of  War  at  the  earliest 
possible  date. 

5.  The  travel  directed  is  necessary  in  the  military  service. 
By  order  of  the  Secretary  of  War : 

WILLIAM  KELLY,  Jr., 

Adjutant  General. 

Pursuant  to  paragraph  3  of  the  foregoing  letter,  Lieut.  Col.  F.  M. 
Barrows,  F.  A.,  was  detailed  as  recorder  of  the  board. 

Coincident  with  the  appointment  of  this  board  the  Chief  of  Staff 
caused  cablegrams  to  be  sent  to  the  headquarters  of  the  Philippine 
and  Hawaiian  Departments,  and  to  headquarters,  A.  E.  F.,  France, 
to  the  following  effect : 

The  War  Department  has  convened  at  Washington  a  board  to  investigate 
the  law  and  procedure  of  military  justice  and  to  make  recommendations 
thereon.  Advise  all  officers  of  your  command  who  are  exercising  general 
court-martial  jurisdiction,  or  who  have  heretofore  exercised  it,  and  all  judge 
advocates,  that  specific  recommendations  looking  to  the  improvement  of  the 
system  are  invited.  These  propositions  should  be  concrete  and  in  precise  form 
for  incorporation  in  law  or  regulation,  and  accompanied  by  concise  statements 
of  the  reasons  upon  which  the  recommendations  are  grounded.  They  should 
be  forwarded  by  mail  with  the  least  possible  delay,  addressed  to  Maj.  Gen. 
F.  J.  Kernan,  President,  Special  War  Department  Board,  Washington,  D.  C. 

(3) 


the  proposed  revision  of  the  Articles  of  War,  as  set  out  in  the  Cham- 
berlain bill  (66th  Cong.,  1st  sess..  S.  Gi),  rests.  And  if  courts-martial 
have,  as  the  chief  purpose  of  their  existence,  the  nice  exemplification 
of  technical  rules  of  law,  this  basic  change  is  logical.  But  if  the  real 
purpose  of  the  court-martial  is  to  enable  commanders  to  insure 
discipline  in  their  forces,  it  may  be  questioned  if  this  end  will  be 
better  served  by  taking  the  working  of  this  agency  out  of  the  hands 
of  those  who,  as  soldiers,  know  much  of  discipline  and  something 
of  military  law,  and  putting  it  into  the  hands  of  those  who  as 
lawyers  know  much  of  law  but  little  of  soldiering,  or  of  the  discipline 
indispensable  to  successful  soldiering. 

It  may  be  useful  at  this  point  to  consider  the  real  nature  of  com- 
mand with  special  reference  to  the  fundamental  doctrine  that  the 
constitutional  authority  of  the  President  as  Commander  in  Chief 
can  not  be  abridged  by  Congress  in  the  exercise  of  its  power  to  make 
rules  for  the  government  of  our  armies.  Does  the  authority  or  right  to 
command  presuppose  the  existence  of  the  organized  Army  machine  fit 
and  ready  to  carry  out  the  word  of  command  but  brought  into  being, 
trained  and  maintained  in  fit  condition  for  its  work  by  agencies  inde- 
pendent of  him  in  whom  command  is  vested  ?  Does  command  imply 
only  that  the  commander  may  express  his  will  for  the  use  of  the  force 
to  that  force,  and  that  the  latter  thereupon  legally  bound  to  carry 
out  the  order?  Or,  does  command  embrace  and  imply,  and  has  it 
always  embraced  and  implied,  not  merely  the  right  to  direct  the  use 
of  the  force,  but  the  duty  and  authority  to  make  and  maintain  the 
force  fit  and  suitable  to  its  purpose  by  instruction,  by  training,  and 
by  discipline? 

Is  it  practicable,  if  good  results  are  to  be  expected,  to  divorce  the 
command  of  armies  from  their  training  and  discipline,  to  repose 
command  in  one  set  of  men  while  placing  in  other  and  independent 
hands  the  creation  and  maintenance  of  that  spirit  of  discipline  which 
must  prevail  if  command  is  to  be  lifted  from  the  domain  of  futility 
to  that  of  effectiveness  ? 

The  rules  governing  armies  had  their  beginnings,  not  in  legisla- 
tive bodies,  but  in  commanders  whether  called  kings  or  chiefs  or 
generals,  and  in  early  times  those  who  formulated  the  rules  carried 
them  out.  With  the  evolution  of  governments  the  right  of  prescrib- 
ing the  most  important  or  fundamental  rules  has  lodged  in  legisla- 
tive bodies,  but  the  execution  of  those  rules,  their  practical  adminis- 
tration, has  heretofore  been  left  to  commanders  and  their  assistants 
down  through  the  hierarchy  of  command  to  the  very  bottom. 
Courts-martial  have  always  been  agencies  for  creating  and  main- 
taining the  discipline  of  armies,  and  in  earlier  times,  and  certainly 
until  the  adoption  of  our  Constitution,  were  provided  and  adminis- 
tered by  commanders  as  of  inherent  right.  The  King  of  England 
had  and  exercised  this  inherent  right.  The  Continental  Congress 
took  over  some  of  the  duties  of  government  in  the  rebellious  colo- 
nies, but  Washington  as  Commander  in  Chief  appointed  courts- 
martial  as  of  right  inherent  in  that  office  without  the  express  au- 
thority of  that  Congress.  So  that  when  our  Constitution  was  adopted 
and  the  powers  of  the  Federal  Government  were  distributed  among 
three  great  departments,  and  the  President  was  made  by  the  organic 
law  Commander  in  Chief,  the  power  to  appoint  courts-martial,  by 


virtue  of  that  office,  was  well  understood.  The  power  to  make  rules 
for  the  government  of  the  land  forces  was  at  the  same  time  confided 
to  Congress.  The  earlier  Articles  of  War  continued  or  created  under 
that  grant  of  power  did  not  expressly  confer  upon  the  President  the 
right  or  authority  to  appoint  courts-martial,  but  actually  he  exer- 
cised the  power,  and  the  validity  of  that  action  is  well  established. 
It  appears,  therefore,  that  before  our  Constitution  was  established 
a  Commander  in  Chief  was  inherently  competent  to  appoint  courts- 
martial  as  incident  to  his  office;  that  under  the  Constitution  this 
right  has  been  exercised  and  upheld,  and  further,  that  the  rules  made 
for  the  Army  by  Congress  have  extended  to  subordinate  commanders 
(who  are  in  fact  assistants  to  the  President  in  his  special  capacity 
as  Commander  in  Chief)  the  right  to  appoint  and  to  make  use  of  this 
agency. 

The  pending  Chamberlain  bill  proposes  to  take  out  of  the  hands  of 
those  to  whom  command  is  confided,  from  the  President  down,  the 
effective  use  of  courts-martial  as  instruments  to  enforce  discipline. 
It  does  this  by  providing  a  civilian  court  of  military  appeals  and  by 
injecting  into  the  principal  courts-martial  a  new  functionary  with 
powers  so  extensive  and  of  such  a  kind  as  to  constitute  him  the  ad- 
ministrator of  discipline,  though  he  is  not  himself  of  the  heirarchy 
of  command.  The  net  result  in  the  more  important  cases  would  be 
to  transfer  the  power  to  discipline  our  armies  from  the  Commander 
in  Chief,  the  President,  and  from  his  assistant  commanders,  to 
civilian  hands  pure  and  simple,  i.  e.,  the  court  of  military  appeals, 
or  to  the  quasi  civilian  legal  hands  of  the  judge  advocates  provided 
for  general  and  special  courts-martial.  In  view  of  the  history  of 
the  court-martial  as  an  adjunct  of  armies  and  as  an  instrument  the 
use  of  which  inheres  in  the  office  of  the  Commander  in  Chief  under 
our  system  of  government  is  it  not  possible  that  the  proposition  to 
take  from  the  President,  in  large  measure,  the  effective  use  of  this 
instrument,  as  well  as  to  take  away  from  his  proper  assistants  in  the 
task  of  command  a  like  use  of  the  same  instrument,  may  be  uncon- 
stitutional? Is  it  not  in  effect  an  attempt  to  withdraw  from  com- 
mand an  essential  part  of  that  which  belongs  to  it  historically  and  in 
sound  reason  ?  Is  it  not  open  to  be  questioned  as  an  attempt  by  law 
to  emasculate  the  legitimate  and  heretofore  undisputed  authority  of 
the  President  as  Commander  in  Chief? 

If  in  England,  whence  we  drew  our  Articles  of  War,  the  execu- 
tive, independent  of  legislative  enactment,  could  appoint  courts- 
martial  and  execute  their  sentences;  if  Washington,  as  Commander 
in  Chief  of  the  Continental  Armies,  could  and  did  exercise  the  like 
power  without  express  authority  of  law,  does  it  not  seem  reasonable 
that  the  new  Commander  in  Chief  under  our  Constitution  was  simi- 
larly empowered  ?  For  not  only  did  our  military  system  come  essen- 
tially from  England  but  the  language  in  which  that  system  is  ex- 
Eressed  is  our  own,  so  that  words  or  phrases  imbedded  in  our  organic 
iw  may  be  taken  to  connote  the  same  thing  and  to  carry  the  same  im- 
plications as  in  the  mother  tongue.  Therefore,  Commander  in  Chief 
in  the  Constitution  would  seem  broadly  to  mean  what  Commander  in 
Chief  meant  in  the  Continental  Army  and,  in  the  absence  of  express 
limitations,  to  carry  with  it  the  same  general  scope  of-  authority.  If 
this  be  the  fact,  can  the  President  by  law  be  subjected  in  his  action 


8 

upon  court-martial  cases  to  review  and  absolute  reversal  by  a  civilian 
tribunal  such  as  the  Chamberlain  bill  proposes  to  set  up?  And 
similarly  can  the  President's  assistants  in  his  functions  of  Commander 
in  Chief,  his  commanding  officers,  have  this  means  of  enforcing  com- 
mand wrested  from  them  and  handed  over  to  a  junior  staff  officer 
himself  normally  exercising  no  command  and  concerned  with  dis- 
cipline only  as  an  abstraction?  Would  it  not  in  effect  be  saying  to 
all  commanders  from  the  President  down,  "  You  can  issue  commands, 
but  we  deny  you  the  power  to  enforce  them  "  ? 

If  the  fifty-second  article  of  war.  as  proposed  in  the  Chamberlain 
bill,  had  been  law  and  the  St.  Mihiel  offensive  had  been  a  complete 
failure  of  American  arms  instead  of  a  brilliant  success,  the  com- 
mander in  chief  in  France,  or  the  President,  might  have  had  occasion 
to  court-martial  a  high  commander  as  responsible,  through  miscon- 
duct, for  the  disaster.  A  finding  of  guilty  and  the  sentence  adjudged 
on  the  spot  by  a  court-martial  composed  of  fellow  officers,  duly 
equipped  by  special  knowledge  and  antecedent  training  to  judge  justly 
and  sanely,  could  be  set  aside  upon  a  legal  technicality  construed  by 
three  civilians  sitting  in  Washington  to  be  an  error  of  law  injuriously 
affecting  the  substantial  rights  of  the  accused,  although  the  immedi- 
ate commander  and  the  President  had  approved  the  whole  proceed- 
ings as  legally  sufficient  and  intrinsically  important  in  the  highest 
degree  for  the  Army's  welfare.  The  power  to  discipline  effectively, 
inseparably  bound  up  with  the  power  of  effective  command,  would 
be  in  this 'particular  case  paralyzed.  The  requirements  of  effective 
command  as  determined  by  the  Commander  in  Chief,  be  it  observed, 
are  thus  halted  by  an  independent  agency  outside  the  Army. 

It  has  always  been  held  that,  as  between  the  State  and  Federal 
Governments,  a  distinct  power  granted  to  the  latter  carries  with  it  a 
right  to  the  usual  and  necessary  means  to  make  the  express  grant 
effective,  and  that  those  means  were  beyond  the  power  of  the  State  to 
impede  or  destroy.  This  upon  the  principle  that  it  was  futile  and 
absurd  to  confer  on  one  authority  the  right  to  build  up  a  particular 
agency  if  there  existed  in  another  authority  the  right  to  tear  down 
that  same  agency.  So  between  the  different  departments  of  the  Fed- 
eral Government  it  would  be  equally  absurd  to  confer  upon  the  Ex- 
ecutive the  right  to  command  the  armies  and  at  the  same  time  to  con- 
fer upon  the  judiciary  the  right  to  render  the  exercise  of  that  com- 
mand futile  through  a  power  to  weaken  or  destroy  the  discipline  of 
the  armies  by  reversing  and  setting  aside  the  President's  disciplinary 
action  upon  grounds  which  might  appear  material  to  a  civilian  court 
without  military  experience  and  far  removed  from  the  atmosphere 
in  which  armies  must  necessarily  operate,  but  which,  in  relation  to 
the  disciplinary  importance  of  the  case  and  of  the  proved  facts  and 
circumstances,  might  be  relatively  inconsequential.  If  it  may  be  said 
that  such  action  by  a  court  of  review  is  not  to  be  anticipated,  the  an- 
swer is  that  heretofore  given  by  our  Federal  courts  to  a  like  conten- 
tion, namely,  that  it  is  not  alone  the  exercise  of  the  power  to  nullify 
or  destroy  which  must  be  guarded  against,  but  its  very  existence. 

If,  however,  these  doubts  as  to  the  legality  of  the  more  radical 
innovations  be  set  aside,  there  remains  the  duty  of  examining  them 
from  the  standpoint  of  expediency,  and  of  considering  the  question 
of  providing  some  further  agency  of  appellate  jurisdiction  and  of  de- 
termining whether  that  agency,  if  provided,  should  not,  in  law  and 


in  the  interest  of  discipline  and  as  a  logical  part  of  a  system  of  mili- 
tary courts,  be  established  within  the  Army  itself. 

>It  is  the  common  practice  of  intelligent  men,  founded  on  experi- 
ence, to  yoke  up  responsibility  and  a  definite  task  with  the  authority 
and  the  means  designed  to  make  the  accomplishment  of  the  task 
reasonably  certainy  The  chief  task  for  which  armies  exist  is  of  su- 
preme importance  to  the  State.  The  responsibility  upon  those  exer- 
cising command,  and  especially  high  command  while  war  lasts,  is 
second  to  no  other  responsibility  under  the  Government.  It  involves 
the  question  of  life  and  death  for  many  individuals  and  it  may  in- 
volve the  very  existence  of  the  State  itself.  From  this  it  results  that 
great  authority,  great  latitude  of  judgment,  great  power  over  the 
personnel  of  armies,  have  always  been  vested  in  those  to  whom  com- 
mand is  confided.  To  achieve  the  purpose  of  their  existence  armies 
must  be  clothed  and  fed  and  instructed  and  disciplined  in  prepara- 
tion for  the  test  of  combat.  All  governments  provide  for  these 
things.  Upon  what  basis  of  reasonableness  can  a  general  be  endowed 
with  power  to  give  orders  to  his  command  which  may  mean,  and 
often  must  and  do  mean,  the  certain  death  and  mutilation  of  thou- 
sands, while  withholding  from  him  the  antecedent  authority  to 
achieve  such  discipline  as  shall  minimize  death  and  multiply  the 
chances  of  victory?  Yet  here  is  a  proposition  by  which  one  of  the 
most  effective  and  powerful  sanctions  of  good  discipline — the  court- 
martial — is  to  be  taken  substantially  from  the  general  who  must  fight 
the  command,  and  whose  success  or  failure  may  hinge  absolutely 
upon  its  discipline,  and  to  put  it  into  the  hands  of  one  whose  special 
qualification  is  law  and  whose  knowledge  of  disciplinary  require- 
ments may  be  of  the  slightest.  The  highest  qualification  for  making 
a  court-martial  achieve  the  object  of  its  existence  is  a  thorough 
knowledge  of  men  and  discipline  in  the  profession  of  arms,  not  mere 
expertness  in  law.  That  is  why  the  judgment  of  those  responsible 
for  discipline,  and  whose  whole  business  is  bed-rocked  on  discipline, 
is  of  higher  value  to  the  service  and  is  entitled  to  greater  public  con- 
fidence in  its  essential  justice  than  a  judgment  or  opinion  upon  the 
same  subject  matter  from  any  source  not  cognizant  of  the  problems 
and  circumstances  affecting  military  service  in  the  field. 

In  the  opinion  of  this  board  the  unwisdom  of  this  new  departure, 
assuming  it  to  be  legally  competent,  is  startlingly  apparent. 

From  this  point  it  is  convenient  to  pass  to  a  consideration  of  the 
phenomena  through  which  the  public  seems  to  manifest  a  belief  that 
courts-martial  are  apt  to  be  instruments  of  injustice  and  that  their 
sentences  often  (if  not  habitually)  are  transparently  excessive  to 
the  point  of  cruelty. 

Through  the  daily  press,  magazines,  lectures,  and  other  media  the 
public  is  told  that  courts-martial  give  sentences  grotesquely  severe, 
that  Army  officers,  from  some  innate  quality  in  the  profession,  be- 
come arbitrary  and  develop  a  callous  attitude  toward  soldiers  and 
are  peculiarly  ignorant  of  the  laws  governing  the  Army.  These 
general  charges  of  injustice  are  upheld  by  specifications  consisting 
of  a  statement  of  offenses  followed  by  a  statement  of  the  punishments 
imposed.  Thus,  for  example,  a  soldier  is  ordered  to  peel  potatoes 
and  refuses  to  obey.  He  is  tried  for  this  offense,  is  convicted,  and 
sentenced  to  years  of  confinement.  Or,  let  us  say,  the  soldier  smokes 
130626— 19- 2 


10 

a  cigarette  in  disobedience  of  orders,  and  is  given  years  of  confine- 
ment for  this  trifling  indulgence  in  a  habit  to  which  the  youngster 
had  become  addicted.  The  public  does  not  stop  to  analyze  the  pos- 
sible effects  of  these  apparently  trifling  misdeeds.  Peeling  potatoes 
is  an  unpleasant  task,  and  why  wonder  if  some  people  balk  at  it, 
and  why  give  so  harsh  a  punishment  for  so  simple  a  dereliction? 
Nobody  would  suffer  much  if  there  were  no  potatoes  for  dinner, 
anyhow.  Similarly,  smoking  a  cigarette  is  a  bad  habit,  perhaps; 
but  millions  do  it.  What,  then,  could  a  court  be  thinking  of  to  pun- 
ish it  by  years  of  imprisonment?  A  young  soldier  whose  command 
is  about  to  embark  for  France  is  seized  suddenly  by  a  strong  desire 
to  say  good-by  once  more  to  his  mother  or  his  sweetheart.  What 
more  human  impulse  can  be  imagined?  There  is  general  sympathy 
with  the  young  man  when  he  yields  to  this  temptation  and  goes  off 
without  permission  and  the  ship  and  his  comrades  sail  without  him. 
But  a  court,  a  singularly  heartless  court,  awards  years  of  confine- 
ment for  this  act — an  act  which  seems  at  first  glance  (and  this  is  as 
far  as  most  people  go)  almost  a  virtue  instead  of  a  fault.  The 
answer  to  the  faulty  public  judgments  upon  acts  of  this  sort,  and 
upon  military  offenses  generally,  is  that  the  just  measure  of  punish- 
ment can  never  be  inferred  from  a  consideration  of  the  offense  as  an 
abstraction,  as  if  it  had  been  committed  by  Kobinson  Crusoe  in  the 
days  of  his  solitude.  A  small  discoloration  on  a  man's  foot  may 
seem  to  the  layman  a  trifling  matter  calling,  perhaps,  for  a  mild 
lotion.  If  it  signifies  gangrene  to  the  surgeon,  the  leg  may  be  ampu- 
tated. Insubordination  is  as  fatal  to  armies  as  gangrene  is  to  the 
physical  man,  and  as  the  surgeon  is  the  better  judge  of  what  remedy 
is  needful  in  the  one  case,  so  in  the  other  a  court-martial  is  more  apt 
than  the  general  public  to  reach  a  just  conclusion.  And  a  lighted 
cigarette  in  a  city  park  presents  a  proposition  altogether  different 
from  the  same  thing  in  a  powder  plant.  Let  us  pause  a  moment  on 
the  absent-without-leave  man,  a  most  common  offender,  and  one 
highly  effective  for  appealing  to  the  public  mind  and  misleading  it. 
If  the  man  himself  does  not  set  up  in  extenuation  the  overpowering 
effect  of  some  deep  and  natural  human  emotion,  the  imagination  of 
nearly  everybody  will  do  so,  especially  if  guided  by  slight  sugges- 
tion. But  how  about  the  absentee's  comrades  in  the  trenches?  It 
may  always  happen,  and  it  does  often  happen,  that  the  absentee's 
dereliction  puts  a  double  burden  of  duty  upon  a  wearied  comrade 
and  doubles  the  chance  of  death  to  the  faithful  soldier  who,  though 
he  has  a  heart,  too,  and  mothers  and  sweethearts  as  well,  has  also  a 
sense  of  duty.  In  judging  the  absentee,  then,  no  court,  if  it  does  its 
duty,  can  treat  the  man  or  his  offense  as  an  abstract  proposition.  It 
is  obliged  to  do  justice  as  between  this  man  who  failed  in  his  duty 
and  the  comrades  who  fully  performed  theirs  and  stuck  by  the  colors. 
It  is  obliged  to  do  justice  as  between  the  offender  and  his  Govern- 
ment. For  if  one  man  may  do  this  thing  and  escape  serious  conse- 
quences, why  should  not  others  be  tempted  to  follow?  And  if  one 
man  can  be  excused  for  this  act  by  pleading  homesickness,  or  similar 
causes  in  which  we  all  sympathize,  why  can  not  the  same  plea  be 
set  up  by  others  whose  real  animating  motive  may  be  cowardice,  or 
a  desire  to  shirk,  or  other  like  reason  ? 

The  simple  fact  is  that  there  is  no  absolute  standard  by  which  one 
can  say  this  sentence  represents  justice  and  that  one  is  excessive  and 


11 

therefore  unjust.  It  all  becomes  a  matter  of  opinion  and  opinion 
is  valuable  in  proportion  to  the  fullness  of  the  knowledge  upon  which 
the  opinion  is  based.  Let  it  be  acknowledged  that  in  any  system 
of  discipline  or  justice  administered  by  fallible  mortals  mistakes 
will  occur;  not  always,  however,  in  the  direction  of  severity;  often 
the  other  way.  So  much  being  admitted,  it  can  safely  be  affirmed 
that  whenever  an  outcry  is  raised  that  a  particular  sentence  is  ex- 
cessive to  the  point  of  injustice,  we  have  presented  a  case  of  dif- 
fering judgments.  The  court  and  the  reviewing  authority  thought 
one  thing,  the  distant  critic  thinks  another.  Which  is  right?  It  is 
extraordinary,  but  it  seems  to  be  the  fact,  that  in  all  these  cases 
the  public  places  its  confidence  as  of  course  in  the  critic's  judgment 
and  condemns  as  of  course  that  of  the  court.  Yet  the  latter  has 
the  fullest  light,  the  most  complete  knowledge,  of  all  the  facts  and 
circumstances  upon  which  a  sound  and  just  measure  of  punishment 
can  be  based.  There  is  no  comparison  upon  this  point.  No  written 
court-martial  record  is  anything  more  than  a  partial  reproduction  of 
the  case  in  its  fullness.  A  multiplicity  of  side  lights  beats  upon  every 
case  not  capable  of  reproduction  in  the  record  and  therefore  com- 
pletely excluded  from  the  knowledge  of  those  at  a  distance  who 
assume  to  form  and  to  promulgate  a  different  judgment,  and  which 
they  unhesitatingly  claim  is  juster  and  wiser  than  the  one  reached 
by  the  court.  It  is  safe  to  assert,  and  this  board  believes,  that  in  the 
majority  of  the  relatively  few  cases  criticized  as  unjust  the  sentence 
as  given  by  the  court  and  approved  locally  is  made  with  fuller  rel- 
evant knowledge  of  the  whole  case  and  of  the  requirements  of  disci- 
pline, and  represents  justice  as  a  whole  better  than  does  the  later 
opinion  of  the  distant  reviewer  limited  to  a  reading  of  the  written 
record  in  a  Washington  office. 

The  public  has  apparently  assumed  that  even  the  War  Department 
itself  holds  that  the  judgment  of  a  board  of  review,  or  a  clemency 
board,  sitting  in  Washington  and  passing  upon  the  proper  quantum 
of  punishment  is  sounder  and  represents  justice  better  than  the  judg- 
ment of  the  reviewing  authority  and  the  court  originally  imposing 
the  sentence.  This  board,  for  reasons  just  indicated,  is  unable  to  join 
in  that  view.  The  general  rule,  it  believes,  is  the  other  way.  The 
board  holds  that  present  remission  or  mitigation  is  justified,  not  on 
the  ground  that  the  original  sentence  at  the  time  and  place  of  its 
imposition  was  unjustly  severe,  but  on  the  ground  that  the  war  is 
over  and  the  sentence,  having  accomplished  with  just  severity  its  dis- 
ciplinary purpose,  may  now,  without  detriment  to  discipline,  have  its 
justice  tempered  by  mercy.  If  this  distinction  is  grasped  and  under- 
stood much  of  the  public  misconception  as  to  the  supposed  unjust 
severity  and  as  to  supposed  dissimilarity  of  sentence  upon  like  cases 
will  disappear. 

The  belief  that  irregularity  of  punishment  for  precisely  the  same 
offense  is  a  common  fault  in  our  practice  is  largely  though  not  wholly 
erroneous,  and  that  error,  like  the  one  of  indefensibly  severe  sen- 
tences in  particular  cases,  appears  to  this  board  to  be  due  in  part 
to  a  failure  to  appreciate  that  sentences  are  not  imposed  as  abstract 
punishments  for  stated  offenses,  but  are  properly  and  necessarily 
determined  by  the  conditions  which  existed  at  the  time  in  the  par- 
ticular command  of  which  the  accused  was  a  member,  as  well  as 


12 

by  the  many  circumstances  which  clearly  appeared  to  the  court  during 
the  trial,  such  as  the^  intelligence,  responsibility,  and  demeanor  of  the 
accused,  and  the  witnesses — none  of  which  appear  in  the  written 
record.  Cases  absolutely  alike,  and  hence  calling  for  absolutely 
identical  punishments,  are  rare.  Cases  apparently  just  alike,  as 
exhibited  l>y  the  written  records,  are  exceedingly  common. 

Let  us  suppose  two  divisions  side  by  side  in  the  fiunt  line  and  a 
bloody  collision  with  the  enemy  is  known  by  everyone  to  be  impend- 
ing. If  one  of  these  divisions  lias  been  seasoned  and  tested  by  bat- 
tle, has  in  a  measure  weeded  out  its  weaklings,  and  has  achieved  a 
high  divisional  pride  and  morale  then,  when  the  clash  comes,  few 
absentees  and  few  unjustified  stragglers  to  the  rear  will  mar  its  rec- 
ord or  threaten  its  efficiency.  If  the  adjacent  division  possesses  a 
greener  personnel,  a  lower  standard  of  discipline  and  morale,  and 
other  conditions  adverse  to  efficiency  in  greater  degree  than  the  first 
division,  absentees  may  be  numerous  and  straggling  a  menace  of  the 
utmost  gravity.  A  court  in  the  better  division  may  take  a  lighter  view 
of  the  proper  measure  of  punishment  for  its  offenders  since  they  are 
rare  and  their  particular  kind  of  dereliction  offers  no  threat  to  the 
continued  high  efficiency  of  that  division.  It  is  different  with  the 
other.  Its  absentees  and  its  shirkers  are  threatening  vitally  the 
efficiency  of  the  organization.  This  particular  kind  of  misconduct, 
if  continued,  spells  disaster  to  the  division  as  an  efficient  unit;  per- 
haps the  operations  of  a  corps  or  an  army  may  be  defeated  because  of 
its  failure  at  some  critical  juncture.  Will  not  its  commander  and  its 
courts,  gravely  considering  the  magnitude  of  the  evil,  be  apt  to  punish 
with  great  severity  those  who  are  convicted,  and  will  not  these  heavy 
sentences  be  necessary  and  just?  Will  not  the  resultant  difference 
of  severity  as  exemplified  in  these  two  divisions  toward  apparently 
like  offenses  be,  in  fact,  not  an  evidence  of  unsound  judgment  upon 
the  part  of  one  court  or  the  other,  but  rather  a  proof  that  both 
courts  were  right  and  each  knewT  what  punishment  was  called  for 
then  and  there  in  the  interest  of  discipline  in  their  respective  situa- 
tions? It  can  not  be  too  strongly  emphasized  that  punishment  by 
military  courts  is  not  at  all  for  the  sake  of  vengeance,  nor,  except  in 
a  very  subordinate  way,  is  it  for  the  amendment  or  reformation  of 
the  offender;  its  great  purpose,  the  one  to  which  all  other  purposes 
are  secondary,  is  to  secure  an  efficient  fighting  unit  by  making  it  a 
disciplined  one.  The  just  measure  of  severity  of  every  sentence  is 
to  be  sought,  then,  not  in  a  flat  uniformity  when  charges  and  speci- 
fications happen  to  read  alike,  but  in  its  sound  adjustment  to  the 
needs  of  discipline  as  those  needs  existed  at  the  time  and  place  of 
its  imposition.  The  fundamental  principle  being  this:  That  the 
punishment  should  be  proportioned  to  the  evil  it  seeks  to  cure:  being 
light  when,  all  the  relevant  circumstances  duly  weighed,  the  of- 
feuse  is  found  to  be  comparatively  innocuous  to  discipline,  and  dras- 
tic when  efficiency  is  imperiled.  And  this  furnishes  the  conclusive 
argument  for  keeping  the  administration  of  military  justice  through 
the  court-martial  agency  in  the  hands  of  those  officers  who,  being  as- 
signed to  command  troops,  are  thereby  vested  with  the  chief  respon- 
sibility for  the  discipline  and  fighting  efficiency  of  those  troops. 
Per  contra,  it  disposes  of  the  theory  that  the  lawyer  rather  than  the 
soldier  is  the  one  to  whom,  by  virtue  of  his  expert  legal  knowledge, 


13 

courts-martial,  as  an  adjunct  of  armies,  should  be  delivered  for  ad- 
ministration. 

The  fact  that  courts-martial  may  impose  sentences  which  are  for 
one  reason  or  another  void  ab  initio  is  pointed  out  and  made  the  sub- 
ject of  much  severe  condemnation.  In  other  words,  there  is  no 
regular  machinery  or  court  of  appeals  provided  by  which  cases  so 
void  can  be  reversed  and  the  accused  restored  as  far  as  is  humanly 
possible  to  the  status  he  would  have  had  save  for  the  illegal  sentence. 
The  pardoning  power  does  not  remove  the  moral  stigma  of  convic- 
tion nor  otherwise  make  completely  good  the  judicial  wrong.  In 
theory  this  is  true,  and  in  practice  a  remedy  may  be  necessary. 
Where  should  this  power  to  revise,  reverse,  and  set  aside  be  vested? 
Some  are  contending  that  the  Judge  Advocate  General  should  have 
this  power.  The  Chamberlain  bill  puts  it  in  a  court  of  military 
appeals,  all  of  the  judges  thereof  normally  being  civilians.  This 
board  believes  that  military  punishments  mainly  exist  as  aids  to  the 
creation  and  maintenance  of  military  discipline ;  that  military  disci- 
pline is  inherently  a  part  of  military  command  and  inseparable  there- 
from; that  under  pur  Constitution  the  command  of  our  Army  and 
every  part  thereof  is  vested  in  the  President ;  that  other  military  com- 
manders are  his  subordinates  and  assistants,  and  are  so  indicated  in 
the  Constitution,  and  as  such  share  in  lesser  degree  the  rights  and 
duties  incident  to  command.  For  it  is  to  be  noted  that  the  Presi- 
dent is  commander  in  chief,  whereby  it  is  clearly  recognized  and 
implied  that  there  are  other  "  commanders  "  subordinate  and  assist- 
ant to  him.  And  it  is  to  be  noted  also  that  this  system  was  in  exist- 
ence in  the  Continental  Army,  and  was  undoubtedly  intended  in  its 
general  outlines  to  be  continued  under  the  new  Federal  system. 
Therefore  appeals  in  the  matter  of  military  punishments  from  the 
actions  of  the  lesser  commanders  can  only  be  constitutionally  made 
to  their  higher  commanders,  up  to  and  including  the  Commander  in 
Chief ;  and  in  cases  in  which  the  President  himself  has  convened  the 
court  and  approved  the  sentence  appeal  therefrom  can  only  be  to  his 
own  conscience  and  judgment  upon  a  deliberate  reconsideration  of 
the  case.  If  this  indicated  course  of  appeal  as  a  legal  necessity  is 
denied,  then  upon  the  highest  grounds  of  military  expediency  it  is 
our  belief  that  the  appeal  should  be  in  the  sequence  of  the  hierarchy 
of  command — never  outside  of  it. 

From  the  foregoing  discussion  it  will  be  apparent  that,  in  the 
opinion  of  this  board,  the  existing  court-martial  system  is  funda- 
mentally sound  and  well  calculated  to  serve  successfully  the  ends 
for  which  it  was  created.  It  is  an  evolution  representing  constant 
change  and  growth.  No  claim  is  made  that  it  is  a  perfect  system; 
rather  it  is  distinctly  admitted  that  in  the  light  of  experience  changes 
may  be  made  now  in  the  direction  of  improvement.  Under  it  errors 
in  the  proceedings,  the  findings,  and  in  the  measure  of  punishment 
occur  from  time  to  time.  This  has  always  been  so  and  will  always 
be  so  in  some  measure.  But  this  is  not  peculiar  to  the  court-martial; 
it  is  true  of  all  agencies  created  and  administered  by  men.  Military 
justice  is  carried  out  at  times  under  great  urgency  and  stress,  where 
the  nice  deliberation  and  finish  of  the  civil  procedure  is  utterly  im- 
possible. For  reasons  already  set  out  we  believe  it  unwise  to  take 
too  seriouslv  the  criticisms  of  those  who  form  conclusions  at  a  dis- 


14 

tance  and  in  the  half  light  of  the  written  record,  shut  out  from  much 
that  would  give  vividness  and  understanding  if  they  but  had  it  to 
guide  them,  as  those  who  actually  tried  the  case  did  have. 

Writing  long  after  the  Civil  War,  an  author  who  had  probably 
examined  with  greater  thoroughness  than  any  other  man  the  detailed 
history  of  military  justice  in  that  war  gave  this  deliberate  opinion 
in  speaking  of  orders  issued  by  military  commanders : 

In  the  orders  in  which  they  act  upon  the  proceedings  and  sentences  of 
courts-martial  they  exercise  an  authority  expressly  conferred  upon  them  by 
statute,  though  here,  too,  they  act  practically  as  substitutes  for  the  Commander 
in  Chief.  The  very  numerous  orders,  especially  of  the  latter  character,  issued 
during  the  late  war,  are  a  monument  to  the  fidelity  to  duty  and  scrupulous 
regard  for  justice  which  have  in  general  characterized  our  high  commanders 
in  war  as  well  as  in  peace.  In  the  thousands  of  thes-e  orders  published  during 
that  period  from  the  headquarters  of  the  various  departments,  divisions,  dis- 
tricts, brigades,  armies,  and  army  corps  the  errors  of  law  dis-covered  have 
been  strikingly  few,  and  the  cases  in  which  justice  has  not  clearly  been  duly 
administered  most  rare. 

This  board  entertains  no  doubt  that  after  the  present  hostile  criti- 
cism, hasty  and  sweeping  and  based  upon  carefully  selected  excep- 
tions, has  cooled  off,  the  future  and  final  judgment,  resting  upon  fuller 
knowledge  and  formed  under  the  benign  influence  of  a  just  perspec- 
tive, will  be  much  like  the  one  just  quoted. 

The  board  recommends  and  attaches  hereto  its  proposed  modifica- 
tions of  the  existing  Articles  of  War.  With  the  adoption  of  these 
by  Congress  necessary  changes  in  the  procedure  as  detailed  in  the 
Manual  would  follow. 

The  board  has  arranged  in  parallel  columns  the  existing  Articles  of 
War  opposite  to  the  proposed  new  articles,  and  the  changes  are  ex- 
plained by  comments  immediately  following.  In  this  comment  ap- 
pears such  discussion  of  the  corresponding  provisions  of  the  Cham- 
berlain bill  as  seemed  necessary. 

In  arriving  at  the  conclusions  concretely  set  forth  in  the  amend- 
ments recommended  by  the  board,  the  personal  knowledge  and  experi- 
ence of  its  members  have,  of  course,  been  factors ;  but  the  board  finds 
it  is  well  supported  in  its  conclusions  by  the  matured  thought  of  ex- 
perienced officers  of  the  service,  including  a  great  many  of  those  who 
joined  the  Army  for  the  emergency  of  war  only.  Expressions  of 
opinion  were  received  by  the  board  from  225  different  officers,  and 
classifying  these  in  a  general  way  the  result  is  that  the  present  court- 
martial  system  in  all  of  its  essential  outlines  is  supported  by  115  of 
these.  On  the  other  extreme,  the  system  is  rather  severely  condemned 
by  43  officers.  Between  these  pronounced  attitudes  every  shade  of 
approval  or  disapproval  may  be  found,  and  the  number  of  officers  so 
classified  as  intermediate  is  67.  From  this  classification,  not  only 
upon  a  numerical  basis  but  upon  a  basis  of  experience  and  thorough 
knowledge  of  the  subject  matter,  this  board  feels  justified  in  averring 
that  our  system  stands  vindicated.  By  this  is  not  meant  that  every 
detail  of  it  is  regarded  as  perfect ;  quite  the  contrary ;  and  the  effort 
of  the  board  has  been  to  accept  modifications  and  to  write  them  into 
the  proposed  revision  of  the  articles  so  as  to  cure  the  more  obvious 
defects  and  to  make  such  substantial  modifications  as  with  our  pres- 
ent light  seem  called  for.  But  change  for  change  sake  alone  has  been 


15 

avoided.  The  net  result  is  that  should  our  recommendations  be 
adopted  the  court-martial  system  would  remain  in  its  broad  outlines 
as  now,  but  minor  defects  would  be  eliminated  and  important  reforms 
will  have  been  inaugurated. 

F.  J.  KERNAN, 
Major  General,  U.  S.  Army. 

JOHN  F.  O'RYAN, 
Major  General,  National  Guard  (N.  Y.). 

HUGH  W.  OGDEN, 
Lieutenant  Colonel,  J.  A.,  U.  8.  A. 

F.  M.  BARROWS, 
Lieutenant  Colonel,  F.  A.,  Recorder. 


APPENDIX 

TO 

PROCEEDINGS    OF    SPECIAL    WAR    DEPARTMENT    BOARD   ON    COURTS-MAR TLAI.    AM> 

THEIR  PROCEDURE. 

MEMBERS. 

F.  J.  KERNAN,  Major  General,  U.  S.  Army,  President. 

J.  F.  O'RYAN,  Major  General,  N.  G.,  N.  Y. 

H.  W.  OGDEN,  Lieutenant  Colonel,  J.  A.  G.  D.,  V.  S.  A. 

F.  M.  BARROWS,  Lieutenant  Colonel,  F.  A.,  U.  S.  A.,  Recorder. 

CONTENTS. 

Changes  proposed  in  the  Articles  of  War. 

EXPLANATION. 

Proposed  articles  are  shown  on  left  side  of  page. 
Existing  articles  are  shown  on  right  side  of  page. 

Under  proposed  articles  the  portions  in  italic  are  new.  while  those  shown  in 
heavy  brackets  are  the  omitted  portions  of  the  existing  articles. 

COMMENT    ON    SECTION     1342,    REVISED    STATUTES,    BEING    THE    ENACTING    CLAUSE    OF 

THE  ARTICLES   OF   WAR. 

The  board  suggests  no  change.  It  does  not  concur  in  the  change  suggested  in 
the  Chamberlain  bill.  The  term  "Articles  of  War  "  has  existed  for  so  long  a 
period  that  all  understand  what  is  meant.  It  is  no  more  an  anachronistic  mis- 
nomer than  is  the  term  "  Lieutenant  General  "  in  relation  to  "  Major  General," 
or  the  title  "  Quartermaster  General,"  or  "  rations."  "Articles  of  War  "  is  in 
reality  a  short  name  for  "Articles  of  War  for  the  Government  of  the  Armies  of 
the  United  States."  The  change  proposed  in  the  Chamberlain  bill  would  embar- 
rass the  paper  work  of  several  hundred  thousand  persons  for  some  time  to  come 
and  until  new  custom  and  usage  had  established  it. 

ARTICLE  1.  No  change. 

PROPOSED     LAW.  EXISTING   LAW. 

"ART.  2.  No  change  except  the  "ART.  2.  PERSONS  SUBJECT  TO  MILI- 
omitting  of  paragraph  (f)."  TARY  LAW.— The  following  persons  are 

subject  to  these  articles  and  shall  be 
understood  as  included  in  the  term 
'  any  person  subject  to  military  law,' 
or  'persons  subject  to  military  law,' 
whenever  used  in  these  articles :  Pro- 
vided, That  nothing  contained  in  this 
act,  except  as  specifically  provided  in 
article  2,  subparagraph  (c),  shall  be 
construed  to  apply  to  any  person  un- 
der the  United  States  naval  jurisdic- 
tion unless  otherwise  specifically  pro- 
vided by  law. 

"(a)  All  officers  and  soldiers  be- 
longing to  the  Regular  Army  of  the 
United  States;  all  volunteers,  from 
the  dates  of  their  muster  or  accept- 

16 


17 

ance  into  the  military  service  of  the 
United  States;  and  all  other  persons 
lawfully  called,  drafted,  or  ordered 
into  or  to  duty  or  for  training  in  the 
said  service  from  the  dates  they  are 
required  by  the  terms  of  the  call, 
draft,  or  order  to  obey  the  same; 

"(b)  Cadets; 

"(c)  Officers  and  soldiers  of  the 
Marine  Corps  when  detached  for  serv- 
ice with  the  armies  of  the  United 
States  by  order  of  the  President :  Pro- 
vided, That  an  officer  or  soldier  of  the 
Marine  Corps  when  so  detached  may 
be  tried  by  military  court-martial  for 
an  offense  committed  against  the  laws 
for  the  government  of  the  naval  serv- 
ice prior  to  his  detachment,  and  for 
an  offense  committed  against  these 
articles  he  may  be  tried  by  a  naval 
court-martial  after  such  detachment 
ceases ; 

"(d)  All  retainers  to  the  camp  and 
all  persons  accompanying  or  serving 
with  the  armies  of  the  United  States 
without  the  territorial  jurisdiction  of 
the  United  States,  and  in  time  of  war 
all  such  retainers  and  persons  accom- 
panying or  serving  with  the  armies 
of  the  United  States  in  the  field,  both 
within  and  without  the  territorial  ju- 
risdiction of  the  United  States,  though 
not  otherwise  subject  to  these  ar- 
ticles ; 

"(e)  All  persons  under  sentence  ad- 
judged by  courts-martial; 

"(f)  All  persons  admitted  into  the 
Regular  Army  Soldiers'  Home  at 
Washington,  District  of  Columbia." 

COMMENT. — The  only  change  proposed  in  the  existing  article  is  the  elimina- 
tion of  subparagraph  (f).  It  is  understood  that  the  Articles  of  War  are  not, 
in  fact,  made  use  of  at  the  Army  Soldiers'  Home  at  Washington  in  the  enforce- 
ment of  discipline.  In  the  changes  proposed  in  the  Chamberlain  bill  it  will  be 
noted  that  in  subparagraph  (a)  "soldiers  of  the  Marine  Corps"  are  omitted 
from  the  application  of  the  Articles  of  War  when  they  are  detached  for  service 
with  the  Army.  Under  the  existing  articles  both  officers  and  enlisted  men  of 
the  Marine  Corps,  when  so  detached,  may  be  tried  under  the  Articles  of  War. 

ART.  3.  No  change. 

COMMENT. — The  Chamberlain  bill  proposes  to  change  the  term  "  court- 
martial  "  to  "  court,"  in  order  to  accentuate  the  judicial  character  sought  to 
be  established  for  such  court.  Court-martial  is  an  old  term,  well  understood, 
and  indicates  by  its  name  that  it  is  a  military  or  martial  court.  If,  as  the  com- 
ment made  under  this  article  in  the  comparative  print  of  the  Chamberlain  bill 
states,  there  are  abuses  to  be  corrected,  such  abuses  will  not  be  minimized  or 
affected  by  a  mere  change  of  the  name  of  the  tribunal,  a  change  which  will 
only  serve  as  an  embarrassment  for  some  time  to  come  in  relation  to  paper 
work  among  many  thousands  of  officers  and  men. 

PROPOSED  LAW.  EXISTING  LAW. 

"ART.  4.  WHO  MAY  SERVE  ON  COURTS-  "ART.  4.  WHO  MAY  SERVE  ON  COURTS- 
MARTIAL. — All  officers  in  the  military  MARTIAL. — All  officers  in  the  military 
service  of  the  United  States,  and  offi-  service  of  the  United  States,  and  offi- 
cers of  the  Marine  Corps  when  de-  cers  of  the  Marine  Corps  when  de- 
tached for  service  with  the  Army  by  tached  for  service  with  the  Army  by 

130626—19 3 


18 

order  of  the  President,  shall  be  com-      order  of  the  President,  shall  be  com- 
petent to  serve  on  courts-martial  for     petent  to  serve  on  courts-martial  for 
the  trial  of  any  persons  who  may  law-      the  trial  of  any  person  who  may  law- 
fully be  brought  before  such  courts  for      fully  be  brought  before  such  courts  for 
trial :  Provided,  however,  that  officers     trial." 
having  less  than  a  total  of  two  years' 
fierr ice,    commissioned   or   enlisted,   in 
either    the    Regular    Army,    National 
Guard,   National  Army,   or  other  na- 
tional armed  forces,  shall  not,  in  time 
of  peace,  be  appointed  as  members  of 
general  or  special  courts-martial  in  ex- 
cess of  a  minority  membership  there- 
of; nor  in  time  of  war,  if  it  can  be 
avoided.    In  the  selection  of  officers  for 
appointment    as    members    of    courts- 
martial  care  will   be  taken   to  select 
those  officers  of  the  command  who  are 
best  qualified  for  such  duty  by  train- 
ing and  experience" 

COMMENT. — The  proposed  change  speaks  for  itself.  It  offers  a  remedy  to 
•cure  a  defect  in  the  existing  system  which  has  been  pointed  out  very  generally 
in  the  suggestions  received  and  considered  by  this  board. 

The  Chamberlain  bill  under  the  proposed  article  makes  soldiers  legally  com- 
petent to  serve  on  general  and  special  courts.  The  board  does  not  concur  in 
this  proposal.  The  individual  experiences  and  results  of  investigation  and 
inquiry  made  by  the  board  indicate  that  officers  who  have  composed  courts- 
martial  are  alert  in  relation  to  the  rights  and  interests  of  enlisted  men.  The 
board  is  of  the  opinion  that  the  proposed  change  is  out  of  harmony  with  the 
American  conception  of  democracy  and  of  our  confidence  in  our  institutions. 
The  change  would  seem  to  be  more  in  harmony  with  that  form  of  discipline 
which  in  Europe  recently  resulted  in  the  establishment  of  soldiers'  and  work- 
men's councils.  Court  membership  necessitates  not  only  the  intention  to  be 
fair  and  impartial,  but  the  capacity  to  discern  the  truth,  the  ability  to  weigh 
evidence,  and  the  experience  to  fix  punishments  commensurate  with  the  offense 
and  with  the  need  to  deter  others.  These  qualities  usually  imply  education  and 
experience  on  the  part  of  court  members.  In  our  armies  under  our  democratic 
institutions  the  class  of  men  who  possess  these  qualities  in  the  fullest  measure 
are  the  officers  for  the  reason  that  under  the  democratic  tests  made  and  ap- 
plied for  the  creation  of  officers,  the  enlisted  men  who  possess  such  qualities  in 
the  fullest  measure  become  officers.  The  enlisted  men  of  our  armies  have  full 
confidence  in  the  fairness  and  ability  of  officers  to  do  justice  as  members  of 
courts. 

There  are  other  objections  to  the  proposed  change.  Enlisted  men  in  close 
comradeship,  as  they  are,  with  the  enlisted  personnel  of  their  units,  would  at 
times  disclose  the  details  of  trial^  how  one  or  another  officer  voted  or  viewed 
a  particular  case,  with  obvious  embarrassment  to  discipline.  Service  by  en- 
listed men  on  courts-martial  would  interfere  with  their  other  work.  Their 
inclusion  would  amount  to  a  proclamation  that  the  officers  are  unqualified  to 
do  justice  to  the  enlisted  men.  Military  courts  constitute  an  agency  for  the 
maintenance  of  discipline,  an  agency  which  is  one  of  command.  The  proposed 
change  is  away  from  this  sound  and  necessary  conception  of  discipline. 

ART.  5.  No  change. 

COMMENT. — The  Chamberlain  bill  proposes  that  general  courts  shall  consist  of 
eight  members,  three  of  whom  in  the  case  of  the  trial  of  a  private  soldier  shall  be 
privates,  and  in  the  case  of  noncommissioned  officers  shall  be  noncommissioned 
officers.  In  the  comment  under  the  previous  article  the  board  has  recorded  its 
views  concerning  the  eligibility  of  enlisted  men  to  serve  as  members  of  courts. 
In  relation  to  the  requirement  that  the  court  shall  be  composed  of  eight  mem- 
bers, the  board  is  of  the  opinion  that  it  is  unwise  to  have  an  even  number 
constitute  a  court,  and  furthermore,  that  the  requirement  of  a  precise  number, 
as  eight,  is  unnecessary  and  oftentimes  impracticable.  The  present  article  in 
prescribing  that  five  officers  may  compose  the  court  will  continue  as  it  has  in 
the  past,  to  meet  service  requirements.  .In  this  war  membership  of  courts  was 
constantly  and  necessarily  changing,  due'to  the  fact  that  officers  were  killed, 
became  ill,  were  ordered  to  school,  or  were  transferred.  The  present  practice 


19 

of  appointing  nine  or  eleven  officers  to  compose  a  general  court,  and  proceeding 
with  trial  so  long  as  five  members  were  available  constantly  enabled  cases  to  be 
satisfactorily  disposed  of.  Under  the  proposed  change  this  would  not  be  pos- 
sible. \There  are  frequent  instances  where  members  of  a  general  court  were 
killed,  wounded,  and  evacuated,  or  transferred  between  the  time  the  order  for 
the  court  was  issued  and  the  day  when  the  court-martial  was  to  sit.  i/ 

ART.  6.  No  change. 

COMMENT. — See  comment  under  articles  4  and  5. 

PEOPOSED  LAW.  EXISTING  LAW. 

"  ART.     7.     SUMMARY     COURTS-MAR-         "  AET.     7.     SUMMARY     COURTS-MAR- 
TIAL.— A  summary  court-martial  shall     TIAL. — A  summary  court-martial  shall 
consist  of  one  officer,  who  shall  be  the      consist  of  one  officer." 
officer  of  the  command  deemed  by  the 
appointing    authority     best     qualified 
therefor,  by  reason  of  rank,  experience, 
and  judicial  temperament." 

COMMENT. — The  board  has  adopted  in  this  article  the  substance  of  the  change 
proposed  in  the  Chamberlain  bill.  It  conforms  the  statute  to  the  practice  which 
has  obtained  in  the  Army. 

ART.  8.  No  change. 

COMMENT. — The  Chamberlain  bill,  in  its  proposed  article  8,  curtails  the 
authority  of  the  President  to  empower  officers  to  appoint  general  courts-martial, 
justifying  the  change  with  the  comment  that  "  to  increase  the  number  of  ap- 
pointing  authorities  is  to  increase  the  number  of  courts — an  undesirable  result." 
The  board  does  not  concur  in  the  change  on  the  ground  that  the  authorization 
of  additional  commanders  who  may  appoint  general  courts  is  at  times  essential, 
due  to  the  circumstances  of  distance,  numbers  of  troops,  and  a  particular  form 
of  organization  made  necessary  to  meet  the  demands  of  the  service.  The  board 
believes  that  the  right  to  empower  additional  convening  authorities  may  with 
safety  be  left  to  the  President.  The  proposed  change  denies  to  an  army  com- 
mander authority  to  convene  a  general  court-martial.  In  other  words,  the  com- 
mander of  an  army  could  not  convene  a  court  for  the -trial  of  a  division  or  other 
commander. 

The  change  leaves  out  the  existing  provision  that  when  the  convening  authority 
is  the  accuser  or  the  prosecutor  the  court  shall  be  appointed  by  superior  compe- 
tent authority,  and  also  the  provision  that  no  officer  shall  be  eligible  to  sit  as  a 
member  of  a  court  when  he  is  the  accuser  or  a  witness  for  the  prosecution. 

ART.  9.  No  change. 

COMMENT. — It  is  to  be  noted  that  in  the  comparative  print  of  the  Chamberlains 
bill  the  printer  has,  on  page  7,  on  which  page  this  article  appears,  reversed  the 
captions  heading  the  left  column  by  "Existing  law"  and  the  right  column  by 
"  Proposed  law,"  when  the  converse  is  intended.  The  board,  in  relation  to  this 
article,  reiterates  the  comment  made  under  the  preceding  article. 

The  proposed  change  denies  to  the  commanding  officer  of  any  garrison,  fort, 
camp,  or  other  place  the  power  to  appoint  special  courts-martial.  This  power, 
particularly  in  times  of  peace,  is  of  great  importance  and  should  not  be  taken 
away. 

ART.  10.  No  change. 

COMMENT. — The  Chamberlain  bill  presents  its  article  10  as  a  new  article, 
providing  for  a  panel  of  officers,  believed  by  the  appointing  authority  to  be 
"  fair  and  impartial  and  competent,"  the  court  to  be  constituted  from  such  panel. 
The  board  regards  the  change  as  both  unnecessary  and  undesirable.  If  in  each 
court-martial  jurisdiction  the  panel  is  to  consist  of  the  officers  possessing  the 
qualities  named,  obviously  officers  of  a  division  not  on  the  panel  would  be 
regarded  as  either  unfair,  partial,  or  incompetent.  In  other  words,  the  panels 
would  be  composed  of  all  the  officers  in  each  jurisdiction  except  such  as  are 
ineligible  for  one  or  more  of  the  reasons  stated.  But  in  a  much  less  cumbersome 
manner  this  is  exactly  the  practice  at  the  present  time.  Looking  at  this  prac- 
tically it  is  obviously  impossible  for  the  appointing  officer  to  know  with  sufficient 
intimacy  the  junior  officers  of  his  command.  Frequently  it  would  happen  that  a 
question  of  procedure  or  competency  could  not,  and  would  not,  arise  until  the 
court  of  which  the  officer  concerned  was  a  member,  was  actually  convened. 
And  an  officer  frequently  would  be  wholly  acceptable  to  one  accused  and  un- 
acceptable to  another  for  the  reason  that  the  latter  might  believe  the  officer  to 


20 

be  prejudiced  or  disqualified  to  try  the  particular  accused.  Hence  it  was  that  the 
board  pointed  out  that  the  Chamberlain  bill,  in  its  proposed  article  8,  had  omitted 
an  important  provision  now  existing,  looking  to  the  rights  and  interests  of  the 
.accused.  Obviously  there  seldom  would  be  time  during  a  state  of  war  for  the 
•convening  authority,  particularly  a  division  commander,  to  examine  into  all  the 
facts  and  circumstances  affecting  the  fairness,  impartiality,  and  competency  of 
each  and  every  officer  of  his  division  in  regard  to  each  and  every  case  that  is  to 
be  tried  by  courts  appointed  by  him,  when  such  investigation  would  have  to  be 
made  in  advance  of  the  time  and  occasion  when  the  question  of  such  fairness, 
impartiality,  or  competency  would  normally  be  raised. 


EXISTING  LAW. 

"ART.  11.  APPOINTMENT  OF  JUDGE  AD- 
VOCATES.— For  each  general  or  special 
court-martial  the  authority  appointing 
the  court  shall  appoint  a  judge  advo- 
cate, and  for  each  general  court- 
martial  one  or  more  assistant  judge 
advocates  when  necessary." 


PROPOSED  LAW. 

"  ART.  11.  APPOINTMENT  or  JUDGE 
ADVOCATES  and  counsel. — For  each  gen- 
eral or  special  court-martial  the  au- 
thority appointing  the  court  shall  ap- 
point a  judge  advocate  and  a  defense 
counsel,  and  for  each  general  court- 
martial  one  or  more  assistant  judge 
advocates  when  necessary:  Provided, 
however,  that  no  officer  who  has  acted 
as  member,  judge  advocate,  assistant 
judge  advocate,  or  defense  counsel  in 
any  case  shall  subsequently  act  as  staff 
judge  advocate  to  the  reviewing  or  con- 
firming authority  upon  the  same  case." 

COMMENT. — It  is  proposed  in  article  12  of  the  Chamberlain  bill  to  amend  the 
provisions  of  old  article  11.  The  changes  proposed  are  based  on  an  analogy  to 
civil  courts,  it  being  stated  that  such  courts  possess  (1)  "triers  of  fact"  and 
(2)  "a  judge  of  the  law." 

The  records  of  military  tribunals  will  show  a  very  small  percentage  of  cases 
wherein  material  errors  of  law  occur.  The  proposed  change  would  mean  a  great 
and  unwarranted  expense  in  the  appointment  of  a  large  number  of  additional 
judge  advocates.  The  power  proposed  for  the  judge  advocate  to  pronounce 
sentence  without  approval  either  antecedent  or  subsequent  by  the  convening 
authority  and  likewise  to  suspend  sentence  in  whole  or  in  part,  would  vest  in 
this  staff  officer,  not  chargeable  in  any  way  with  the  responsibilities  of  com- 
mand, some  of  the  most  important  functions  of  the  commanding  officer. 

The  board  proposes  as  an  amendment  to  article  11  the  above  provisions  which, 
as  will  be  noted,  provide  by  law  for  a  defense  counsel  and  prohibit  a  judge 
advocate,  member  or  counsel,  who  has  taken  a  partisan  part  in  the  trial  from 
later  serving  as  a  staff  judge  advocate  in  reviewing  cases  with  which  he  has 
been  connected  in  another  capacity. 


PROPOSED  LAW. 

"  ART.  12.  GENERAL  COURTS  -  MAR- 
TIAL.— General  courts-martial  shall 
have  power  to  try  any  person  subject 
to  military  law  for  any  crime  or 
offense  made  punishable  by  these  ar- 
ticles, and  any  other  person  who  by 
the  law  of  war  is  subject  to  trial  by 
military  tribunals:  Provided,  That  no 
officer  shall  be  brought  to  trial  before 
a  general  court-martial  appointed  by 
the  Superintendent  of  the  Military 
Academy:  Provided  further,  That  the 
officer  competent  to  appoint  a  general 
court-martial  for  the  trial  of  the  par- 
ticular case  may,  when  in  his  judg- 
ment the  interest  of  the  service  shall 
so  require,  cause  any  case  to  be  tried 
by  a  special  or  summary  court-martial 


EXISTING  LAW. 

"ART.  12.  GENERAL  COURTS  -  MAR- 
TIAL.— General  courts-martial  shall 
have  power  to  try  any  person  subject 
to  military  law  for  any  crime  or 
offense  made  punishable  by  these  ar- 
ticles, and  any  other  person  who  by 
the  law  of  war  is  subject  to  trial  by 
military  tribunals:  Provided,  That  no 
officer  shall  be  brought  to  trial  before 
a  general  court-martial  appointed  by 
the  Superintendent  of  the  Military 
Academy." 


21 


notwithstanding  the  limitations  upon 
the  jurisdiction  of  such  inferior  courts 
as  to  offenses  set  out  in  articles  13  and 
14;  but  the  limitations  upon  jurisdic- 
tion as  to  persons  and  upon  punishing 
power  set  out  in  said  articles  shall  be 
observed." 

COMMENT. — The  modification  of  article  12  proposed  by  the  board  enlarges 
the  jurisdiction  of  the  special  and  summary  court  to  embrace  all  offenses  com- 
mitted by  persons  other  than  officers  and  cadets.  It  does  not  enlarge  the  pun- 
ishing powers  of  these  courts.  The  fundamental  idea  is  that  many  of  our 
articles  denounce  offenses  as  capital,  which,  when  committed  under  certain  cir- 
cumstances, are  really  of  no  vital  import  to  the  service.  The  amendment  pro- 
poses to  confide  to  the  officer  exercising  general  court-martial  jurisdiction  a  dis- 
cretion whereby  he  may  either  send  cases  before  a  general  court  or  have  them 
disposed  of  by  one  of  the  inferior  courts.  The  effect  of  this  modification  ought 
to  be  a  very  considerable  reduction  in  the  number  of  cases  tried  by  general 
courts-martial. 

ABT.  13.  No  change. 

COMMENT. — The  Chamberlain  bill  by  its  proposed  article  14  provides  for  the 
trial  of  officers  by  special  court.  The  board  believes  that  the  object  sought, 
namely  :  The  trial  of  officers  for  minor  offenses  by  other  than  general  courts,  can 
better  be  attained,  because  in  more  summary  manner,  by  the  amendment  of 
existing  article  104  proposed  by  the  board  and  explained  under  that  heading. 


PROPOSED  LAW. 

"ART.  14.  SUMMARY  COURTS  -  MAR- 
TIAL.— Summary  courts-martial  shall 
have  power  to  try  any  person  subject 
to  military  law,  except  an  officer,  a 
cadet,  or  a  soldier  holding  the  privi- 
leges of  a  certificate  of  eligibility  to 
promotion,  for  any  crime  or  offense  not 
capital  made  punishable  by  these  arti- 
cles: [Provided,  That  noncommis- 
sioned officers  shall  not,  if  they  object 
thereto,  be  brought  to  trial  before  a 
summary  court-martial  without  the 
authority  of  the  officer  competent  to 
bring  them  to  trial  before  a  general 
court-martial.J  Summary  courts  shall 
[not]  have  power  to  adjudge  one  or 
more  of  the  following  punishments: 
Confinement  for  [in  excess  of  three 
months]  not  more  than  one  month,  re- 
striction to  limits  for  not  more  than 
three  months,  [nor  to  adjudge  the  for- 
feiture of  more  than  three  months' 
pay]  forfeiture  or  detention  of  pay 
for  not  more  than  three  months,  and 
reduction  in  grade  of  noncommissioned 
officers  and  privates  of  the  line  of  the 
Army:  [Provided,  That  when  the  sum- 
mary court  officer  is  also  the  command- 
ing officer  no  sentence  of  such  sum- 
mary court-martial  adjudging  confine- 
ment at  hard  labor  or  forfeiture  of 
pay,  or  both,  for  a  period  in  excess  of 
one  month  shall  be  carried  into  execu- 
tion until  the  same  shall  have  been  ap- 
proved by  superior  authority :]  Pro- 
vided, [further]  That  the  President 


EXISTING  LAW. 

"ART.  14.  SUMMARY  COURTS  -  MAR- 
TIAL.— Summary  courts-martial  shall 
have  power  to  try  any  person  subject 
to  military  law,  except  an  officer,  a 
cadet,  or  a  soldier  holding  the  privi- 
leges of  a  certificate  of  eligibility  to 
promotion,  for  any  crime  or  offense  not 
capital  made  punishable  by  these  arti- 
cles :  Provided,  That  noncommissioned 
officers  shall  not,  if  they  object  thereto, 
be  brought  to  trial  before  a  summary 
court-martial  without  the  authority  of 
the  officer  competent  to  bring  them  to 
trial  before  a  general  court-martial : 
Provided  further,  That  the  President 
may,  by  regulations  which  he  may 
modify  from  time  to  time,  except  from 
the  jurisdiction  of  summary  courts- 
martial  any  class  or  classes  of  persons 
subject  to  military  law. 

"  Summary  courts-martial  shall  not 
have  power  to  adjudge  confinement  in 
excess  of  three  months,  nor  to  adjudge 
the  forfeiture  of  more  than  three 
months'  pay :  Provided,  That  when  the 
summary  court  officer  is  also  the  com- 
manding officer  no  sentence  of  such 
summary  court-martial  adjudging  con- 
finement at  hard  labor  or  forfeiture  of 
pay,  or  both,  for  a  period  in  excess  of 
one  month  shall  be  carried  into  execu- 
tion until  the  same  shall  have  been  ap- 
proved by  superior  authority." 


22 


may,  by  regulations  which  he  may 
modify  from  time  to  time,  except  from 
the  jurisdiction  of  summary  courts- 
martial  any  class  or  classes  of  persons 
subject  to  military  law." 

COMMENT. — The  board  has  adopted  the  ends  sought  to  be  obtained  in  article  15 
of  the  Chamberlain  bill,  but  has  modified  the  phraseology  so  that  the  power  of 
summary  courts-martial  to  punish  is  stated  affirmatively,  and  not  impliedly,  by 
prescribing  what  authority  the  court  shall  not  have. 


PROPOSED    LAW. 

"ART.  15.  Jurisdiction  NOT  EXCLU- 
SIVE.— The  provisions  of  these  articles 
conferring  jurisdiction  upon  courts- 
martial  shall  not  be  construed  as  de- 
priving military  commissions,  provost 
courts,  or  other  military  tribunals  of 
concurrent  jurisdiction  in  respect  of 
offenders  or  offenses  that  by  statute  or 


EXISTING  LAW. 

"ART.  15.  NOT  EXCLUSIVE. — The  pro- 
visions of  these  articles  conferring 
jurisdiction  upon  courts-martial  shall 
not  be  construed  as  depriving  military 
commissions,  provost  courts,  or  other 
military  tribunals  of  concurrent  juris- 
diction in  respect  of  offenders  or  of- 
fenses that  by  the  law  of  war  may  be 


by  the  law  of  war  may  be  [lawfully!     lawfully  triable  by  such  military  corn- 
triable  by  such  military  [commissions,      missions,  provost  courts,  or  other  mili- 
provost  courts,  or  other  military]  tri-      tary  tribunals." 
bunals." 

COMMENT. — The  board  has  adopted  in  its  proposed  new  article  15  the  amend- 
ment proposed  in  article  16  of  the  Chamberlain  bill. 

ART.  16.  No  change. 


PROPOSED  LAW. 

'ART.  17.  JUDGE  ADVOCATE  TO  PROSE- 
CUTE; Counsel  to  Defend. — The  judge 
advocate  of  a  general  or  special  court- 


EXISTING    LAW. 

"ART.  17.  JUDGE  ADVOCATE  TO  PROSE- 
CUTE.— The  judge  advocate  of  a  gen- 
eral or  special  court-martial  shall 


martial  shall  prosecute  in  the  name  of     prosecute  in  the  name  of  the  United 


States,  and  shall,  under  the  direction 
of  the  court,  prepare  the  record  of  its 
proceedings.  The  accused  shall  have 
the  right  to  be  represented  before  the 
court  by  counsel  of  his  own  selection 
for  his  defense,  if  such  counsel  be 
reasonably  available,  but  should  he, 
for  any  reason,  be  unrepresented  by 
counsel,  the  judge  advocate  shall,  from 
time  to  time,  throughout  the  pro- 
ceedings advise  the  accused  of  his 
legal  rights." 


the  United  States,  and  shall,  under  the 
direction  of  the  court,  prepare  the 
record  of  its  proceedings.  The  accused 
shall  have  the  right  to  be  represented 
in  his  defense  before  the  court  by 
counsel  of  his  own  selection  [for  his 
defense],  civil  counsel  if  he  so  pro- 
vides, or  military  if  such  counsel  be 
reasonably  available,  [but  should  he, 
for  any  reason,  be  unrepresented  by 
counsel,  the  judge  advocate  shall,  from 
time  to  time,  throughout  the  proceed- 
ings advise  the  accused  of  his  legal 
rights],  otherwise  by  the  defense 
counsel  duly  appointed  for  the  court 
pursuant  to  article  11.  Should  the 
accused  have  counsel  of  his  own  selec- 
tion, the  defense  counsel  of  the  court 
shall,  if  the  accused  so  desires,  act  as 
his  assistant  counsel.  The  Secretary 
of  War  is  authorized  to  increase  the 
number  of  acting  judge  advocates  pro- 
vided by  existing  law  to  be  detailed 
from  the  line  of  the  Army  to  such 
number  as  may,  in  his  opinion,  be 
necessary  to  furnish  competent  trial 
judge  advocates  and  defense  counsel  in 
difficult  or  important  cases,  and  to 
perform  such  other  legal  or  quasi 
legal  duties  incident  to  military  ad- 
ministration as  the  interest  of  the 
service  shall  require" 

CoMMENTX^This  board  is  convinced  that  the  most  serious  defect  in  our  court- 
martial  system  arises  from  the  lack  of  competent  trial  judge  advocates  and 


23 

counsel.     In  the  mass  of  suggestions  received  from  experienced  officers  there 
is  almost  universal  agreement  upon  this  question.     To  cure  this  evil  the  board 
has  already  recommended,  in  a  preliminary  report,  that  defense  counsel  be  ap- 
pointed for  each  general  and  special  court-martial,  precisely  as  the  trial  judge 
advocate  is  appointed,  and  from  the  same  field  of  selection.     It  is  recognized, 
moreover,  that  all  encouragement  should  be  held  out  to  young  officers  to  study 
law  and  to  otherwise  equip  themselves  for  these  and  similar  duties.'  The  act- 
ing judge  advocate  has  been  authorized  for  the  Army  since  1884,  and  under 
that  law  many  of  our  officers  became  students  of  law  and  prepared  themselves    t 
for  expert  service  in  that  line  through  fTryir  whole  military  careers..  An  exten- 
sion of  this  tried  system  will  certainly  result  in  producing  a  very  considerable   , 
number  of  officers  qualified  not  only  for  this  particular  duty,  but  for  many  other        / 
duties  arising  in  the  military  service  and  which  require  for  intelligent  discharge    ' 
more  or  less  knowledge  of  law.\  Coming  from  the  line  and  serving  for  a  period 
of  four  years,  more  or  less,  tlielte  officers  would  not  become  legal  experts  ex- 
clusively, but  should  retain  their  knowledge  of  the  service,  of  matters  of  dis- 
cipline, and  of  all  the  intimate  details  which   can  only  be  kept  fresh  by   a 
recurrence   to  duty   with  the  troops.     The  usefulness   of  this   system   is  not 
limited  to  the  improvement  of  the  prosecution  and  defense  of  cases,  but  these 
specially  qualified  officers  would,  as  they  rose  to  higher  rank,  afford  a  body  of    ' 
valuable  officers  for  special  tasks  through  their  entire  military  career.    'The  /  / 
board  regards  this  as  one  of  the  most  important  suggestions  it  has  to  offer  the 
department. 

The  necessity  of  this  proposed  legislation  has  been  accentuated  during  the 
last  year  by  the  experience  of  the  Army  of  Occupation.  Upon  taking  posses- 
sion of  the  Rhine  Province  the  necessity  arose  immediately  to  create  between 
two  and  three  hundred  provost  courts,  which  had  jurisdiction  over  the  German 
inhabitants  of  that  Province,  involving  the  settlement  of  nice  questions  of  law 
and  fact.  The  desirability  of  having  a  class  of  young  officers  trained  in  the 
study  and  administration  of  law  thus  enabling  them  easily,  confidently,  ancf 
justly  to  discharge  the  duty  of  judge  of  a  provost  court  is  too  obvious  for 
argument,  x; 

Articles  18,'  19,  and  20  of  the  Chamberlain  bill  have  all  been  covered  by  this 
board  in  its  preliminary  report  in  which  recommendations  were  made  to  amend 
the  Manual  of  Courts-Martial  so  as  to  improve  the  procedure  incident  to  the 
preferring  of  charges  and  the  action  thereon  before  reference  for  trial.  The 
board  does  not  regard  these  new  articles  either  necessary  or  desirable  legis- 
lation, y^ 

What  has  just  been  said  in  reference  to  the  board's  new  article  17  expresses 
the  board's  adverse  viewr  in  relation  to  the  proposed  articles  21  and  22. 

PROPOSED    LAW.  EXISTING   LAW. 

"ART.  18.  CHALLENGES. — Members  of         "ABT.  18.  CHALLENGES. — Members  of 
a  general  or  special  court-martial  may     a  general  or  special  court-martial  may 
be  challenged  by  the  accused  >or  judge     be  challenged  by  the  accused,  but  only 
advocate  [but  only]  for  cause  stated     for  cause   stated   to   the  court.     The 
to  the  court.     The  court  shall  deter-     court    shall   determine   the    relevancy 
mine  the  relevancy  and  validity  there-      and    validity    thereof,    and    shall    not 
of,  and  shall  not  receive  a  challenge  to     receive  a  challenge  to  more  than  one 
more    than    one    member    at    a    time,      member  at  a  time." 
Challenges  by  the  judge  advocate  shall 
ordinarily    be   presented    and    decided 
before  those  by  the  accused  are  offered. 
Each    side    shall    be    entitled    to    one 
peremptory  challenge." 

COMMENT. — The  board  proposes  one  peremptory  challenge  for  each  side.  The 
proposed  practice  follows  the  practice  in  civil  courts  where  each  side  is  allowed 
to  challenge  for  cause,  and  at  the  same  time  is  limited  in  its  peremptory 
challenges. 

Gen.  Kernan  dissents  from  the  proposition  to  introduce  peremptory  chal- 
lenges into  court-martial  practice.  Of  the  large  number  of  officers  making 
suggestions  for  the  improvement  of  the  existing  system,  very  few  recommended 
this  change ;  and  those  who  did  so  recommend  were  mostly  lawyers  from  civil 
life  commissioned  for  the  emergency  and  whose  experience  upon  courts-martial 
was  either  slight  or  none  at  all.  The  innovation,  it  is  believed,  springs  from 


24 


analogy  to  the  civil  practice  and  is  based  upon  the  erroneous  assumption  that 
what  is  necessary  or  useful  in  that  practice  must,  as  a  matter  of  course  be 
desirable  in  the  military  practice. 


PROPOSED    LAW. 

"ART.  19.  OATHS. — The  judge  advo- 
cate of  a  general  or  special  court- 
martial  shall  administer  to  the  mem- 
bers of  the  court,  before  they  proceed 
upon  any  trial,  the  following  oath  or 
affirmation:  'You,  A.  B.,  do  swear  (or 
affirm)  that  you  will  wrell  and  truly 
try  and  determine,  according  to  the 
evidence,  the  matter  now  before  you, 
between  the  United  .States  of  America 
and  the  person  to  be  tried,  and  that 
you  will  duly  administer  justice,  with- 
out partiality,  favor,  or  affection,  ac-t 
cording  to  the  provisions  of  the  rules' 
and  articles  for  the  government  of  the 
armies  of  the  United  States,  and  if 
any  doubt  should  arise,  not  explained 
by  said  articles,  then  according  to 
your  conscience,  the  best  of  your  un- 
derstanding, and  the  custom  of  war  in 
like  cases;  and  you  do  further  swear 
(or  affirm)  that  you  will  not  divulge 
the  findings  or  sentence  of  the  court 
until  they  shall  be  published  by  the 
proper  authority,  except  to  the  judge 
advocate  and  assistant  judge  advo- 
cate ;  neither  will  you  disclose  or  dis- 
cover the  vote  or  opinion  of  any  par- 
ticular member  of  the  t!ourt-martial 
upon  a  challenge  or  upon  the  findings 
or  sentence  unless  required  to  give 
evidence  thereof  as  a  witness  by  a 
court  of  justice  in  due  course  of  law. 
So  help  you  God.' 

"  When  the  oath  or  affirmation  has 
been  administered  to  the  members  of  a 
general  or  special  court-martial,  the 
president  of  the  court  shall  administer 
to  the  judge  advocate  and  to  each  as- 
sistant judge  advocate,  if  any,  an  oath 
or  affirmation  in  the  following  form: 
'  You,  A.  B.,  do  swear  (or  affirm)  that 
you  will  not  divulge  the  findings  or 
sentence  of  the  court  to  any  but  the 
proper  authority  until  they  shall  be 
duly  disclosed  by  the  same.  So  help 
you  God.' 

"All  persons  who  give  evidence  be- 
fore a  court-martial  shall  be  examined 
on  oath  or  affirmation  in  the  following 
form:  'You  swear  (or  affirm)  that  the 
evidence  you  shall  give  in  the  case  now 
in  hearing  shall  be  the  truth,  the 
whole  truth,  and  nothing  but  the  truth. 
So  help  you  God.' 

"  Every  reporter  of  the  proceedings 
of  a  court-martial  shall,  before  enter- 
ing upon  his  duties,  make  oath  or 
affirmation  in  the  following  form : 
'Yon  swear  (or  affirm)  that  you  will 


EXISTING  LAW. 

"ART.  19.  OATHS. — The  judge  advo- 
cate of  a  general  or  special  court- 
martial  shall  administer  to  the  mem- 
bers of  the  court,  before  they  proceed 
upon  any  trial,  the  following  oath  or 
affirmation:  'You,  A.  B.,  do  swear  (or 
affirm)  that  you  will  well  and  truly 
try  and  determine,  according  to  the 
evidence,  the  matter  now  before  you, 
between  the  United  States  of  America 
and  the  person  to  be  tried,  and  that 
you  will  duly  administer  justice,  with- 
out partiality,  favor,  or  affection,  ac- 
cording to  the  provisions  of  the  rules 
and  articles  for  the  government  of  the 
armies  of  the  United  States,  and  if 
any  doubt  should  arise,  not  explained 
by  said  articles,  then  according  to 
your  conscience,  the  best  of  your  un- 
derstanding, and  the  custom  of  war  in 
like  cases;  and  you  do  further  swear 
(or  affirm)  that  you  will  not  divulge 
the  findings  or  sentence  of  the  court 
until  they  shall  be  published  by  the 
proper  authority,  except  to  the  judge 
advocate  and  assistant  judge  advo- 
cate ;  neither  will  you  disclose  or  dis- 
cover the  vote  or  opinion  of  any  par- 
ticular member  of  the  court-martial, 
unless  required  to  give  evidence  there- 
of as  a  witness  by  a  court  of  justice 
in  due  course  of  law.  So  help  you 
God.' 

"When  the  oath  or  affirmation  has 
been  administered  to  the  members  of  a 
general  or  special  court-martial,  the 
president  of  the  court  shall  administer 
to  the  judge  advocate  and  to  each  as- 
sistant judge  advocate,  if  any,  an  oath 
or  affirmation  in  the  following  form: 
'  You,  A.  B.,  do  swear  (or  affirm)  that 
you  will  not  divulge  the  findings  or 
sentence  of  the  court  to  any  but  the 
proper  authority  until  they  shall  be 
duly  disclosed  by  the  same.  So  help 
you  God.' 

"All  persons  who  give  evidence  be- 
fore a  court-martial  shall  be  examined 
on  oath  or  affirmation  in  the  following 
form:  'You  swear  (or  affirm)  that  the 
evidence  you  shall  give  in  the  case  now 
in  hearing  shall  be  the  truth,  the 
whole  truth, 'and  nothing  but  the  truth. 
So  help  you  God.' 

"  Every  reporter  of  the  proceedings 
of  a  court-martial  shall,  before  enter- 
ing upon  his  duties,  make  oath  or 
affirmation  in  the  following  form : 
'You  swear  (or  affirm)  that  you  will 


25 


faithfully  perform  the  duties  of  re- 
porter to  this  court.  So  help  you  God.' 

"  Every  interpreter  in  the  trial  of 
any  case  before  a  court-martial  shall, 
before  entering  upon  his  duties,  make 
oath  or  affirmation  in  the  following 
form:  'You  swear  (or  affirm)  that 
you  will  truly  interpret  in  the  case 
now  in  hearing.  So  help  you  God.' 

"  In  case  of  affirmation  the  closing 
sentence  of  adjuration  wrill  be  omitted." 


faithfully  perform  the  duties  of  re- 
porter to  this  court.  So  help  you  God.' 

"  Every  interpreter  in  the  trial  of 
any  case  before  a  court-martial  shall, 
before  entering  upon  his  duties,  make 
oath  or  affirmation  in  the  following 
form  :  '  You  swear  (or  affirm)  that  you 
will  truly  interpret  in  the  case  now  in 
hearing.  So  help  you  God.' 

"  In  case  of  affirmation  the  closing 
sentence  of  adjuration  will  be  omitted." 


COMMENT. — The  only  change  proposed  in  article  19  is  intended  to  limit  the 
obligation  of  secrecy  to  the  voting  upon  challenges,  findings,  and  the  sentence. 
The  object  of  this  change  is  to  enable  the  court  to  decide  in  open  court  any  other 
questions  which  may  arise  in  the  course  of  their  proceedings  and  to  enable  the 
members  in  arriving  at  such  decision  in  open  court  to  indicate  their  opinions  or 
the  opinions  of  their  fellow  members  freely. 

ART.  20.  No  change. 

COMMENT. — For  reasons  heretofore  stated  under  article  11  the  board  is  not 
in  accord  with  the  proposal  to  modify  this  article,  which  is  contained  in  article 
25  of  the  Chamberlain  bill. 


EXISTING  LAW. 

"ABT.  21.  REFUSAL  TO  PLEAD. — When 
the  accused,  arraigned  before  a  court- 
martial,  from  obstinacy  and  deliberate 
design  stands  mute  or  answers  foreign 
to  the  purpose,  the  court  may  proceed 
to  trial  and  judgment  as  if  he  had 
pleaded  not  guilty." 


PROPOSED    LAW. 

"ART.  21.  REFUSAL  or  Failure  TO 
PLEAD. — When  an  accused  arraigned 
before  a  court-martial  [from  obstinacy 
and  deliberate  design  stands  mute! 
fails  or  refuses  to  plead,  or  answers 
foreign  to  the  purpose,  or  after  a  plea 
of  guilty  makes  a  statement  incon- 
sistent ivith  the  plea,  or  makes  a  plea 
of  guilty  improvidently  or  through 
lack  of  understanding  of  its  meaning 
and  effect,  the  court  shall  enter  a  plea 
of  not  guilty  and  shall  thereupon  pro- 
ceed accordingly  [may  proceed  to  trial 
and  judgment  as  if  he  had  pleaded  not 
guilty.!" 

COMMENT. — The  board  has  adopted  in  its  proposed  article  21  the  substance 
of  article  26  of  the  Chamberlain  bill.  This  accords  with  the  existing  practice. 

ART.  22.  No  change. 

COMMENT. — The  changes  proposed  by  the  Chamberlain  bill  are  set  forth  in 
article  27  of  that  bill.  These  changes  actually  constitute  the  practice  at  the 
present  time  under  existing  rules  of  procedure.  The  board  has  carefully  con- 
sidered the  proposal  to  constitute  these  or  similar  rules  of  procedure  organic  law 
by  including  them  as  part  of  article  22,  but  believes  that  details  of  this  char- 
acter do  not  properly  belong  in  the  statute.  The  existing  article  22  adequately 
furnishes  the  basis  for  rules  which  conform  in  practice  to  what  is  prescribed  in 
article  27  of  the  Chamberlain  bill. 

ART.  23.  No  change. 

No  comment. 


PROPOSED  LAW. 

"ART.  24.  COMPULSORY  SELF-!NCRIMI- 
NATIOX  PROHIBITED. — No  witness  before 
a  military  court,  commission,  court  of 
inquiry,  or  board,  or  before  any  officer 
conduct  hn/  an  investigation,  or  before 
any  officer,  military  or  civil,  designated 
to  take  a  deposition  to  be  read  in  evi- 
dence before  a  military  court,  commis- 
sion, court  of  inquiry,  or  board,  or  he- 


EXISTING  LAW. 

"ART.  24.  COMPULSORY  SELF-INCRIMI- 
NATION  PROHIBITED. — No  witness  before 
a  military  court,  commission,  court  of 
inquiry,  or  board,  or  before  any  officer, 
military  or  civil,  designated  to  take  a 
deposition  to  be  read  in  evidence  before 
a  military  court,  commission,  court  of 
inquiry,  or  board,  shall  be  compelled  to 
incriminate  himself  or  to  answer  any 


26 

fore  an  officer  conducting  an  investiga-     questions  which  may  tend  to  incrimi- 

tion,  shall  be  compelled  to  incriminate     nate  or  degrade  him." 

himself    or    to    answer   any    question 

[questions]  the  answer  to  which  may 

tend  to  incriminate  [or  degrade]  him, 

or  to  answer  any  question  not  material 

to  the  issue  when  such  answer  might 

tend  to  degrade  him." 

COMMENT. — The  board  has  adopted  the  changes  proposed  in  article  29  of  the 
Chamberlain  bill  with  slight  changes  in  the  language. 

ARTS.  25,  26,  and  27.  No  change. 

COMMENT. — The  board  does  not  concur  in  article  30  of  the  Chamberlain  bill, 
believing  that  the  existing  articles  25,  26,  and  27  upon  the  same  subject  are 
more  reasonable  and  better  adapted  to  serve  the  ends  of  justice. 

ART.  28.  No  change. 

ART.  29.  No  change.     (See  Comment  under  article  54.) 

ART.  30.  No  change. 

PROPOSED  LAW.  EXISTING  LAW. 

"ART.  31.  Method  [ORDER]  OF  VOT-  "ART.  31.  ORDER  OF  VOTING. — Mem- 
ING. — [Members  of  a  general  or  special  bers  of  a  general  or  special  court-mar- 
court-martial,  in  giving  their  votes,  tial,  in  giving  their  votes,  shall  begin 
shall  begin  with  the  junior  in  rank.]  with  the  junior  in  rank." 
Voting  by  members  of  a  general  or 
special  court-martial  upon  questions  of 
challenge,  on  the  findings,  and  on  the 
sentence  shall  be  by  secret  written  bal- 
lot. The  junior  member  of  the  court 
xhall  in  each  case  count  the  votes, 
ivhich  count  shall  be  checked  by  the 
president,  who  will  forthwith  announce 
the  result  of  the  ballot  to  the  members 
of  the  court.  In  the  absence  of  objec- 
tions by  members  of  the  court  the 
president  may  rule  in  open  court  upon 
interlocutory  questions,  other  than 
challenges,  arising  during  the  proceed- 
ings, provided  that  if  any  member 
object  to  such  ruling  the  court  shall  be 
cleared  and  closed  and  the  question  de- 
cided by  a  majority  vote,  viva  voce,  be- 
ginning with  the  junior  in  rank." 

COMMENT. — The  object  of  the  change  proposed  in  article  31  is  chiefly  to 
remove  all  danger  of  junior  members  being  influenced  in  their  vote  upon  mate- 
rial questions  by  the  presence  of  their  superior  officers  or  by  the  opinion  held 
by  their  seniors,  who  may  have  indicated  opposite  views.  This  suggestion  has 
been  made  by  a  number  of  officers  as  tending  to  secure  the  untrammeled  vote 
of  every  member  according  to  his  conscience  and  without  any  undue  influence 
which  might  arise  under  the  open  ballot  heretofore  existing.  The  other  change 
providing  for  rulings  in  open  court  has  as  its  object  the  saving  of  time.  It 
is  perfectly  well  known  that  many  questions  often  quite  unimportant  and 
easily  determined  by  common  consent  in  open  court  are  under  present  usage 
decided  in  closed  court,  with  much  loss  of  time  and  no  possible  good  gained. 
The  endeavor  has  been  to  so  word  the  article  as  to  save  the  right  of  every  indi- 
vidual to  his  own  opinion  in  every  case,  and  he  can,  if  he  dissents  from  the 
proposed  ruling  of  the  president  of  the  court,  secure  full  discussion  and  a 
vote  in  closed  court  by  simply  requesting  it. 

PROPOSED  LAW.  EXISTING  LAW. 

"ART.     32.  CONTEMPTS. — A     military  "ART.  32.  CONTEMPTS. — A  court-mar- 

tribunal   [court-martial]    may   punish  tial  may  punish  at  discretion,  subject 

[at   discretion,   subject  to  the  limita-  to  the  limitations  contained  in  article 

tions   contained   in    article   fourteen,]  fourteen,    any    person    who    uses    any 

as  for  contempt  any  person  who  uses  menacing  words,  signs,  or  gestures  in 


27 

smy  menacing  words,  signs,  or  gestures     its  presence,  or  who  disturbs  its  pro- 
in  its  presence,  or  who  disturbs  its  pro-      ceedings  by  any  riot  or  disorder." 
ceedings  by  any  riot  or  disorder :  Pro- 
I'ided,  Thnt  such  punishment  shall  in 
no   case   exceed    one   month's   confine- 
ment, or  a  flue  of  $100,  or  both." 

COMMENT. — The  board  has  endeavored  to  make  the  punishment  for  contempt 
more  definite  and  certain  than  in  the  existing  article  32. 

The  term  military  tribunal  was  adopted  in  order  to  include  in  the  power  to 
punish  for  contempt  military  commissions  and  provost  courts. 

PEOPOSED  LAW.  EXISTING   LAW. 

"ART.  33.  RECORDS — GENERAL  COURTS-  "ART.  33.  RECORDS — GENERAL  COURTS- 
MARTIAL. — Each  general  court-martial  MARTIAL. — Each  general  court-martial 
shall   keep   a   separate   record   of   its  shall  keep  a  separate  record  of  its  pro- 
proceedings  in  the  trial  of  each  case  ceedings    in    the    trial    of    each    case 
brought    before   it,    and    such    record  brought    before    it,    and    such    record 
shallbe  authenticated  by  the  signature  shall  be  authenticated  by  the  signature 
of  the  president  and  the  judge  advo-  of  the  president  and  the  judge  advo- 
cate ;  but  in  case  the  record  can  not  cate ;  but  in  case  the  record  can  not  be 
be  authenticated  by  the  president  and  authenticated  by  the  judge  advocate, 
judge  advocate,  by  reason  of  the  [his]  by  reason  of  his  death,  disability,  or 
death,  disability,  or  absence  of  either  absence,  it  shall  be  signed  by  the  presi- 
or  both  of  them,  it  shall  be  signed  T>y  dent  and  an  assistant  judge  advocate, 
a  member  in  lieu  of  the  president  and  if  any ;  and  if  there  be  no  assistant 
by    an    assistant    judge    advocate,    if  judge  advocate,  or  in  case  of  his  death, 
there  be  one,  in  lieu  of  the  judge  advo-  disability,    or    absence,    then    by    the 
cate;  othcnrise  by  another  member  of  president   and    one    other   member   of 
the  court,     [by  the  president  and  an  the  court." 
assistant  judge  advocate,  if  any;  and 
if  there  be  no  assistant  judge  advocate, 
or  in  case  of  his  death,  disability,  or 
absence,  then  by  the  president  and  one 
other  member  of  the  court.]" 

COMMENT. — The  purpose  of  this  change  is  obvious.  It  provides  for  any  case 
which  can  arise  in  the  service. 

ART.  34.  No  change. 

ART.  35.  No  change. 

COMMENT. — The  change  recommended  in  the  Chamberlain  bill  is  incident  to 
the  radical  proposition  set  out  in  article  12  of  that  bill.  This  board  has  already 
recorded  its  total  dissent  from  that  proposition,  and  that  same  dissent  extends 
to  the  new  article  38  as  proposed. 

ART.  36.  No  change. 

COMMENT. — See  comment  for  article  35. 

ART.  37.  No  change. 

COMMENT. — The  board  believes  the  retention  of  the  two  provisos  in  the  exist- 
ing article  to  be  manifestly  desirable.  These  are  dropped  from  article  40  of  the 
Chamberlain  bill,  one  for  alleged  bad  working  in  practice,  the  other  for  incor- 
poration elsewhere  in  the  articles. 

ART.  38.  No  change. 

COMMENT. — The  proposed  amendment  contained  in  the  Chamberlain  bill 
under  its  article  41  reads  into  the  military  system  of  courts  the  rules  of  evi- 
dence of  a  civil  court.  The  adoption  of  this  change  would  require  continued 
study  on  the  part  of  officers  not  only  of  the  rules  of  such  civil  courts,  but  also 
of  decisions  of  Federal  district  courts  and  of  appellate  Federal  courts  constru- 
ing such  rules.  This  proposition  illustrates  vividly  the  impracticability  of  sug- 
gestions made  by  officers  and  others  who  have  had  little  or  no  experience  with 
troops  in  the  field,  men  whose  military  experience  has  been  largely  limited  to 
permanent  offices  elaborately  equipped  with  libraries  and  with  abundant  leisure 
to  pursue  the  niceties  of  legal  subtleties.  The  actual  administration  of  military 
justice  often  takes  place  under  conditions  precluding  reference  to  extensive 
libraries  and  a  suggestion  of  that  kind  voices  inexperience  and  a  half-knowledge 
of  the  service. 

ART.  39.  No  change. 


28 


PROPOSED    LAW. 


EXISTING    LAW. 

"ART.  40.  As  TO  NUMBER. — No  person 
shall  be  tried  a  second  time  for  the 
same  offense." 


"ART.  40.  As  TO  NUMBER. — No  person 
shall  be  tried  a  second  time  for  the 
same  offense:  Provided,  That  no  pro- 
cedure in  which  a  conviction  has  been 
reached  by  a  court-martial  upon  an  if 
charge  or  specification  shall  lie  h eld- 
to  be  a  trial  in  the  sense  of  this  arti- 
cle until  the  reviewing  authority,  and, 
if  there  be  one,  the  confirming  author- 
ity, shall  have  taken  final  action  upon 
the  case" 

COMMENT. — The  purpose  of  this  addition  to  the  old  article  40  is  to  permit  a 
rehearing  only  in  cases  where  a  conviction  was  had  in  the  first  instance  but 
which  for  some  material  error  could  not  be  approved.  It  impliedly  forbids  any 
retrial  when  the  first  procedure  resulted  in  a  total  acquittal. 


PROPOSED  LAW. 


'ART.  41.  CRUEL  AND  UNUSUAL  PUN- 


EXISTING  LAW. 


"ART.    41.  CERTAIN    KINDS    PROHIB- 


ISHMENTS    [CERTAIN    KINDS]    PROHIB-  ITED. — Punishment  by  flogging,   or  by 

ITED. — Cruel  and  unusual  punishments  branding,  marking,  or  tattooing  on  the 

of  every  kind,  including  [by]  flogging,  body  is  prohibited." 
[or  by]  branding,  marking,  or  tattoo- 
ing on  the  body,  arc  [is]  prohibited." 

COMMENT. — The  board  has  adopted  for  the  new  article  41  the  language  of 
article  44  of  the  Chamberlain  bill. 


PROPOSED  LAW. 

"ART.  42.  PLACES  OF  CONFINEMENT — 
WHEN  LAWFUL. — Except  for  desertion 
in  time  of  war,  repeated  desertion  in 
time  of  peace,  and  mutiny,  no  person 
shall  under  the  sentence  of  a  court- 
martial  be  punished  by  confinement  in 
a  penitentiary  unless  an  act  or  omis- 
sion of  which  he  is  convicted  is  rec- 
ognized as  an  offense  of  a  civil  nature 
and  so  punishable  by  penitentiary  con- 
finement for  more  than  one  year  by 
some  statute  of  the  United  States,  or 
by  the'^sit  the  common]  law  of  [as 
the  same  exists  in]  the  District  of 
Columbia,  or  by  way  of  commutation 
of  a  death  sentence,  and  unless,  also, 
the  period  of  confinement  authorized 
and  adjudged  by  such  court-martial 
is  more  than  one  year  [or  more] : 
Provided,  That  when  a  sentence  of 
confinement  is  adjudged  by  a  court- 
martial  upon  conviction  of  two  or 
more  acts  or  omissions  any  one  of 
which  is  punishable  under  these  ar- 
ticles by  confinement  in  a  peniten- 
tiary, the  entire  sentence  of  confine- 
ment may  be  executed  in  a  peniten- 
tiary :  Provided  further,  That  peni- 
tentiary confinement  hereby  author- 
ized may  be  served  in  any  penitentiary 
directly  or  indirectly  under  the  juris- 
diction of  the  United  States:  Pro- 
vided further.  That  persons  sentenced 
to  dishonorable  discharge  and  to  con- 
finement not  in  n  penitentiary  shall  be 


EXISTING  LAW. 

"ART.  42.  PLACES  OF  CONFINEMENT — 
WHKX  LAWFUL. — Except  for  desertion 
in  time  of  war,  repeated  desertion  in 
time  of  peace,  and  mutiny,  no  person 
shall  under  the  sentence  of  a  court- 
martial  be  punished  by  confinement  in 
a  penitentiary  unless  an  act  or  omis- 
sion of  which  he  is  convicted  is  recog- 
nized as  an  offense  of  a  civil  nature 
by  some  statute  of  the  United  States, 
or  at  the  common  law  as  the  same 
exists  in  the  District  of  Columbia,  or 
by  way  of  commutation  of  a  death  sen- 
tence, and  unless,  also,  the  period  of 
confinement  authorized  and  adjudged 
by  such  court-martial  is  one  year  or 
more:  Provided,  That  when  a  sen- 
tence of  confinement  is  adjudged  by  a 
court-martial  upon  conviction  of  two 
or  more  acts  or  omissions  any  one  of 
which  is  punishable  under  these  ar- 
ticles by  confinement  in  a  peniten- 
tiary, the  entire  sentence  of  confine- 
ment may  be  executed  in  a  peniten- 
tiary:  Provided  further,  That  peni- 
tentiary confinement  hereby  author- 
ized may  be  served  in  any  penitentiary 
directly  or  indirectly  under  the  juris- 
diction of  the  United  States :  Provided 
further,  That  persons  sentenced  to 
dishonorable  discharge  and  to  confine- 
ment not  in  a  penitentiary  shall  be 
confined  in  the  United  States  disci- 
plinary barracks  or  elsewhere  as  the 
Secretary  of  War  or  the  reviewing 


29 

confined   in    the   United    States   disci-      authority    may    direct,    but   not   in    a 

plinary  barracks  or  elsewhere  as  the     penitentiary." 

Secretary    of   War    or    the    reviewing 

authority   may    direct,    but   not    in    a 

penitentiary." 

COMMENT. — The  draft  herein  submitted  differs  from  the  present  article  by 
making  it  read  "  more  than  one  year  "  in  lieu  of  "  a  year  or  more  "  and  by 
inserting  after  the  words  "  of  a  civil  nature  "  the  words  "  and  so  punishable 
by  penitentiary  confinement  for  more  than  one  year."  The  word  "  common  " 
has  been  dropped  as  a  qualifying  word  for  District  of  Columbia  law. 

PROPOSED  LAW.  EXISTING  LAW. 

"ART.  43.  DEATH  SENTENCE — WHEN  "ART.  43.  DEATH  SENTENCE — WHEN 
LAWFUL. — No  person  shall,  by  general  LAWFUL. — No  person  shall,  by  general 
court-martial,  be  convicted  of  an  of-  court-martial,  be  convicted  of  an  of- 
fense for  which  the  death  penalty  is  fense  for  which  the  death  penalty  is 
made  mandatory  by  law,  nor  sentenced  made  mandatory  by  law,  nor  sentenced 
to  suffer  death,  except  by  the  concur-  to  suffer  death,  except  by  the  concur- 
rence of  three-fourths  [two-thirds]  of  rence  of  two-thirds  of  the  members 
the  members  of  said  court-martial,  of  said  court-martial,  and  for  an  of- 
and  for  an  offense  in  these  articles  fense  in  these  articles  expressly  made 
expressly  made  punishable  by  death,  punishable  by  death.  All  other  con- 
All  other  convictions  and  sentences,  victions  and  sentences,  whether  by 
whether  by  general  or  special  court-  general  or  special  court-martial,  may 
martial,  may  be  determined  by  a  two-  be  determined  by  a  majority  of  the 
thirds  vote  [majority]  of  the  mem-  members  present." 
bers  present.  .477  other  questions  shall 
be  determined  !>}/  <i  majority  vote" 

COMMENT. — Those  best  informed  through  long  experience  in  court-martial 
trials  believe  almost  universally  that  very  few  innocent  men  are  found  guilty 
by  military  courts  and  sentenced  to  punishment.  On  the  other  hand,  they 
believe  that  guilty  men  often,  through  one  cause  or  another,  succeed  in  escap- 
ing conviction  and  punishment.  The  board  believes  that  it  would  be  unwise 
materially  to  extend  the  opportunity  of  guilty  men  to  escape  conviction  and 
punishment  by  reason  of  a  desire  to  add  precautions  seemingly  unnecessary  to 
insure  the  rights  of  the  innocent,  as  proposed  in  article  46  of  the  Chamberlain 
bill.  In  cases  involving  the  death  penalty,  a  requirement  that  three- fourths 
instead  of  two-thirds  to  convict  and  sentence  is  recommended.  All  other  con- 
victions and  sentences  by  general  and  special  court-martial  shall  be  determined 
by  a  two-thirds  vote. 

NOTE. — Gen.  Kernan  dissents  from  the  recommendation  that  all  convictions 
and  sentences,  save  those  involving  death,  shall  be  reached  only  with  the  con- 
currence of  two-thirds  of  the  membership.  The  present  system  is  old ;  in  his 
observation  it  makes  for  justice  in  the  very  great  majority  of  cases.  Under 
it  few  innocent  people  are  ever  convicted,  as  testified  by  many  of  the  experi- 
enced officers  who  have  given  this  board  their  views.  The  change  seems  to  him 
to  lose  sight  of  the  fundamental  distinction  between  court-martial  trials,  whose 
primary  object  is  the  paramount  necessity  of  safeguarding  the  whole  force,  and 
the  civil  trial,  where  the  reform  of  the  individual  is  perhaps  the  controlling 
consideration  and  where  failures  of  justice,  through  the  escape  of  the  guilty,  are 
not  fraught  with  such  great  possibilities  of  evil.  Society  at  large  can  perhaps 
afford  to  have  many  of  its  criminals  at  large;  the  presence  of  such  in  a  mili- 
tary force  is  relatively  a  much  greater  menace. 

ART.  44.  No  change. 

COMMENT. — The  board  recommends  the  retention  of  this  article  without 
change.  In  relation  to  the  emotion  of  fear,  pride  is  the  greatest  agency  for 
its  control.  Physical  fear  may  frequently  be  controlled  by  the  greater  fear  of 
loss  of  reputation  in  home  locality.  The  present  article  is  an  old  one,  and 
while  seldom  resorted  to  undoubtedly  has  served  its  purpose. 

PROPOSED   LAW.  EXISTING  LAW. 

"ART.  4.1.  MAXIMUM  LIMITS.— When-  "ART.  45.  MAXIMUM  LIMITS. — When- 
ever the  punishment  for  a  crime  or  of-  ever  the  punishment  for  a  crime  or  of- 
fense made  punishable  by  these  articles  fense  made  punishable  by  these  articles 
is  left  to  the  discretion  of  the  court-  is  left  to  the  discretion  of  the  court- 


30 

martial,  the  punishment  shall  not,  in     martial,  the  punishment  shall  not,  in 
time   of  peace,   exceed   such  limit   or     time   of  peace,   exceed   such   limit   or 
limits  as  the  President  may  from  time     limits  as  the  President  may  from  time 
to  time  prescribe :  Provided,   That  in     to  time  prescribe." 
time   of  peace   the  period   of  confine- 
ment   in    a   penitentiary    shall   in   no 
case  exceed  the  maximum  period  pre- 
scribed   by   the   Federal   civil   law   in 
like  cases  unless,  in  addition  to   the 
offenses  so  punishable  under  such  laiv, 
the  accused  shall  have  been  convicted 
at    the    same    time    of    one    or    more 
purely  military  offenses" 

COMMENT. — The  purpose  of  the  change  is  obvious.  Its  justification  is  to  be 
found  in  the  principle  that  for  like  offenses  like  limitations  of  punishment 
should  prevail. 

AKT.  46.  No  change. 

ART.  47.  NO  change. 

ART.  48.  No  change. 

ART.  49.  No  change. 

ART.  50.  No  change. 

PROPOSED  LAW.  EXISTING  LAW 

"Art.  5Q\.  Appeal  and  Retrial. — 
When  the  proceedings  of  a  court-mar- 
tial are  held  invalid  or  the  findings  or 
sentence  are  disapproved  on  the 
ground  of  improper  admission  or  re- 
jection of  evidence  or  for  any  error 
as  to  any  matter  of  pleading  or  proce- 
dure which,  in  the  opinion  of  the  re- 
viewing or  confirming  authority,  has 
injuriously  affected  the  substantial 
rights  of  the  accused,  that  authority 
may  direct  the  retrial  of  the  accused 
before  a  court  composed  of  officers 
who  were  not  members  of  the  original 
court,  on  those  charges  and  specifi- 
cations only  of  which  the  accused  was 
found  guilty:  Provided,  That  upon 
such  retrial  no  sentence  shall  be  im- 
posed in  excess  of,  or  more  severe 
than,  the  original  sentence. 

"  The  record  and  proceedings  of  all 
general  courts-martial,  courts  of  in- 
quiry, and  military  commissions  shall 
without  delay  be  forwarded  to  the 
Judge  Advocate  General  of  the  Army, 
who  shall  receive,  cause  to  be  re- 
corded, examine  and  revise  such  rec- 
ords and  proceedings.  When  such  ex- 
amination or  revision  discloses  er- 
ror or  other  cause  requiring  action  by 
the  President  under  the  provisions  of 
these  articles  the  Judge  Advocate  Gen-  ^ 
eral  shall  prepare  a  memorandum  of 
his  mews  and  recommendations  in  re- 
lation thereto  and  submit  it  with  the 
record  of  the  case  to  the  Secretary  of 
War  for  the  action  of  the  President. 

"  The  President,  as  Commander  in 
Chief,  in  any  case  tried  by  a  general 
court-martial  or  military  commission, 
may  set  aside,  disapprove,  or  vacate 
any  finding  of  guilty  in  whole  or  in 
part,  or  modify,  vacate,  or  set  aside 
any  sentence  in  whole  or  in  part,  and 


31 

direct  the  execution  of  the  sentence  as 
modified,  and  of  such  part  thereof 
as  has  not  been  vacated  or  set  aside. 
The  President  as  Commander  in  Chief 
may  set  aside  the  entire  proceedings  in 
any  case  and,  subject  to  the  provision 
of  this  article,  grant  a  new  trial  be- 
fore such  general  court,  military  com- 
mission or  special  court  as  he  may  des- 
ignate; or  he  may  restore  the  accused 
to  all  rights  as  if  no  such  trial  had 
ever  been  held^  and  his  necessary 
orders  to  this  end  shall  be  binding 
upon  all  departments  and  officers  of 
the  Government. 

COMMENT. — This  is  a  proposed  new  article.  It  provides  the  reviewing  and 
confirming  authorities  with  power  to  order  a  retrial  in  the  event  of  material 
error,  but  prohibits  any  greater  sentence  than  was  imposed  upon  the  original 
trial.  In  the  opinion  of  the  board,  to  direct  a  new  trial  in  the  interest  of  the 
accused  is  not  double  jeopardy  within  the  constitutional  prohibition,  especially 
in  view  of  the  proposed  amendment  to  article  40  defining  a  court-martial  trial. 

Next,  the  article  provides  for  automatic  appeal  in  all  general  court-martial 
cases  and  prescribes  the  duties  of  the  Judge  Advocate  General  of  the  Army 
in  relation  to  such  appeals.  The  board  felt  that  in  a  matter  so  important  the 
process  of  appeal  should  not  be  left  to  be  fixed  by  order  or  rules  of  procedure 
subject  to  change  from  time  to  time  without  reference  to  Congress,  but  should 
be  made  mandatory  in  the  article.  Next,  the  President  is  vested  with  absolute 
authority  to  take  any  action  which  the  record  or  the  facts  indicate  to  be  neces- 
sary in  order  to  render  justice,  including  the  vacating  and  setting  aside  of  an 
order  of  dismissal  or  of  dishonorable  discharge.  This  latter  is  provided  for  in 
language  which  permits  of  no  doubt  as  to  the  intention,  for  the  President  is 
authorized  to  restore  the  accused  to  all  rights  "as  if  no  such  trial  had  ever 
been  held,"  and,  further,  "  his  necessary  orders  to  this  end  shall  be  binding 
upon  all  departments  and  officers  of  the  Government." 

The  proposed  article  gives  the  President  more  than  his  existing  powers  to 
exercise  clemency  and  to  vacate  for  material  error  of  law.  It  is  believed  that 
the  system  herein  provided  for  meets  all  reasonable  suggestions  of  amendment 
and  at  the  same  time  preserves  unimpaired  the  disciplinary  power  of  the  Com- 
mander in  Chief. 

ART.  51.  No  change. 

ART.  52.  No  change. 

ART.  53.  No  change. 

NOTE. — In  the  Chamberlain  bill  by  its  articles  51  and  52  provision  is  made 
for  a  civilian  court  of  military  appeals.  The  board  has  carefully  considered 
this  proposal  and  recommends  against  it  for  the  reasons  stated  in  the  general 
report. 

ART.  54.  No  change. 

COMMENT. — The  change  proposed  by  article  53  of  the  Chamberlain  bill  would 
enable  a  soldier  in  time  of  war,  who  sought  to  avoid  battle,  to  desert  his  organi- 
zation in  the  face  of  the  enemy  and  protect  himself  from  the  consequences  of 
such  desertion  by  fraudulently  enlisting  in  an  organization  not  serving  at  the 
front. 

ART.  55.  No  change. 

COMMENT. — See  comment  for  article  54. 

ARTS.  56  and  57.  No  change. 

COMMENT. — The  board  recommends  no  change  in  articles  56  and  57.  The 
language  thereof  not  only  provides  for  punishment  of  officers  who  violate  the 
provisions  of  these  articles,  but  emphasizes  the  character  and  importance  of 
returns  and  muster  rolls.  As  the  Articles  of  War  are  required  to  be  read  once 
in  every  six  months  the  detailed  language  is  justified  and  serves  a  purpose. 

ART.  58.  No  change. 

COMMENT. — The  board  believes  it  wise  to  continue  the  existing  article  with- 
out change,  in  order  to  allow  courts  sufficient  latitude  to  meet  conditions  and 
circumstances  as  they  occur.  For  example:  According  to  the  proposed  change 
contained  in  article  55  of  the  Chamberlain  bill  a  soldier  who  deserts  the  Army 
two  days  before  a  declaration  of  war  and  in  order  to  avoid  military  service  in 
war  could  be  sentenced  for  not  more  than  two  years'  confinement,  while  his 


32 

comrade  who  deferred  desertion  for  a  few  days,  until  after  the  declaration  of 
war,  could  be  sentenced  to  be  punished  by  death  or  confinement  for  life,  or  for 
a  fixed  period.  Furthermore,  the  board  is  of  the  opinion  that  the  period  of  con- 
finement for  desertion  bears  a  relation  to  the  prescribed  period  of  enlistment, 
which  may  change  from  time  to  time.  For  example:  If  the  period  of  enlist- 
ment is  for  five  years,  every  man  who  is  dissatisfied  with  his  lot  may  shortly 
after  his  enlistment  desert,  and  after  trial  be  sentenced  to  not  more  than  two 
years'  confinement,  after  which  he  is  discharged,  thereby  terminating  his  con- 
nection with  the  military  service  three  years  in  advance  of  the  time  fixed  in 
his  contract  of  enlistment.  This  may  happen  while  other  men,  equally  dissatis- 
fied, but  who  do  not  desert,  serve  on  throughout  the  full  five-year  period.  The 
same  comment  would  be  applicable  to  a  period  of  enlistment  which  consisted  of 
three  years  of  active  service  and  three  or  more  years  in  reserve. 

ART.  59.  No  change. 

ART.  60.  No  change. 

ART.  61.  No  change. 

COMMENT. — The  proposed  change  in  this  article  contained  in  article  58  of  the 
Chamberlain  bill  is  quite  extraordinary.  There  exists  already,  in  the  limi- 
tations set  out  in  Executive  orders  pursuant  to  article  45,  ample  protection 
for  this  class  of  offenders  in  times  of  peace.  In  war  times  it  becomes,  or  may 
become,  a  deadly  menace  and  this  proposed  article  58  speaks  a  total  lack  of 
appreciation  of  war  conditions.  The  suggestion  can  not  have  the  approval  of 
officers  who  have  had  any  extended  experience  in  battle,  or  who  are  familiar  with 
the  past  experience  of  armies  in  relation  to  this  subject.  The  shirker  who,  know- 
ing his  company  is  to  go  into  battle  on  the  following  day,  absents  himself  there- 
from without  leave,  and  then  makes  a  dishonest  and  of  course  fruitless  effort 
to  rejoin  his  company  (which  has  in  the  meantime  gone  forward)  is  of  the 
class  which  menaces  not  only  the  discipline  of  his  command,  but  the  success 
of  the  Army.  No  military  offense  in  war  is  so  contagious  as  the  one  of  ab- 
sence without  leave.  It  calls  for  drastic  action  by  the  military  authority  at  the 
very  inception  of  military  service,  else  it  soon  gets  out  of  hand  with  results 
to  others  later  on  which  would  have  been  avoided  had  the  subject  been  handled 
with  sternness  in  the  beginning.  If  the  board  were  to  recommend  any  change 
in  this  article,  it  would  recommend  the  inclusion  of  the  death  sentence. 

ART.  62.  No  change. 

ART.  63.  No  change. 

ART.  64.  No  change. 

COMMENT. — The  mind  of  an  experienced  officer  \vill  conceive  many  possibili- 
ties in  relation  to  the  changes  in  this  article  proposed  by  article  61  of  the  Cham- 
berlain bill.  These  changes  are  believed  to  be  radical  in  the  extreme.  Cer- 
tainly they  would  place  a  premium  on  the  avoidance  of  hazardous  service  and 
point  out  to  sokliers  who  sought  to  avoid  such  service  a  happy  and  convenient 
method  of  avoiding  death  in  action  by  committing  an  assault  upon  a  superior 
officer  and  receiving  a  punishment  of  confinement  for  one  year.  The  changes 
proposed  place  all  assaults,  whether  committed  against  second  lieutenant  or  the 
commander  of  the  Army  in  the  field,  in  the  same  class  by  limiting  the  punish- 
ment for  all  such  cases  to  confinement  of  not  more  than  one  year. 

ART.  65.     No  change. 

COMMENT. — The  changes  proposed  in  article  63  of  the  Chamberlain  bill  elim- 
inate threats  of  assault,  attempts  to  assault,  and  disrespect  to  noncommissioned 
officers  as  military  offenses  under  the  article.  The  noncommissioned  officer  class 
is  the  backbone  of  the  company,  and  if  discipline  is  to  exist  their  dignity  and 
responsibility  should  be  safeguarded  against  the  strong  arm  methods  of  the 
unruly. 

ART.  66.  No  change. 

ART.  67.  No  change. 

ART.  68.  No  change. 

PROPOSED  LAW.  EXISTING  LAW. 

"ART.  69.  ARREST  OR  CONFINEMENT  OF  "ART.  69.  ARREST  OR  CONFINEMENT  OF 

ACCUSED    PERSONS. — Any    person    [an  ACCUSED  PERSONS. — An  officer  charged 

officer!  subject  to  military  lair  charged  with  prime  or  with  a  serious  offense 

with  crime  or  with  a  serious  offense  under  these  articles  shall  be  placed  in 

under  these  articles  shall  be  placed  in  arrest  by  the  commanding  officer,  and 

confinement  or  in  arrest  [by  the  com-  in    exceptional    cases    an     officer     so 

manding    ollicer,    and    in    exceptional  charged  may  be  placed  in  confinement 

cases    an    officer    so    charged    may    be  by     the     same     authority.     A     soldier 

placed    in    confinement    by    the    same  charged  with  crime  or  with  a  serious 


33 


authority.  A  soldier  charged  with 
crime  or  with  a  serious  offense  under 
these  articles  shall  be  placed  in  con- 
tinement,  and  when  charged  with  a 
minor  offense  may  be  placed  in  ar- 
ivst.].  as  circumstances  may  require; 
but  icli en  charged  irith  a  minor  of- 
fense only  such  person  shall  not  or- 
dinarilu  be  placed  in  confinement. 
[Any  other  person  subject  to  mili- 
tary law  charged  with  crime  or  with 
a  serious  offense  under  these  articles 
shall  be  placed  in  confinement  or  in 
arrest,  as  circumstances  may  require; 
and  when  charged  with  a  minor  of- 
fense such  person  may  be  placed  in 
arrest.J  Any  person  placed  in  arrest 
under  the  provisions  of  this  article 
shall  thereby  be  restricted  to  his  bar- 
racks, quarters,  or  tent,  unless  such 
limits  shall  be  enlarged  by  proper  au- 
thority. Any  officer  or  cadet  who 
breaks  his  arrest  or  who  escapes  from 
confinement,  whether  before  or  after 
trial  and  before  he  is  set  at  liberty  by 
proper  authority,  shall  be  dismissed 
from  the  service  or  suffer  such  other 
punishment  as  a  court-martial  may 
direct;  and  any  other  person  subject 
to  military  law  who  escapes  from  con- 
finement or  who  breaks  his  arrest, 
whether  before  or  after  trial  and  be- 
fore he  is  set  at  liberty  by  proper  au- 
thority, shall  be  punished  as  a  court- 
martial  may  direct." 

COMMENT. — The  chief  object  of  the  changes  proposed  in  article  69  is  to  lessen 
resort  to  confinement  in  cases  where  restraint  is  not  a  necessity  either  to  pre- 
vent the  escape  of  the  accused  or  to  restrain  him  from  further  violence  or  for 
other  like  reasons.  Further  modification  is  intended  to  clear  up  any  possible 
doubt  as  to  whether  the  fact  of  trial  having  taken  place  makes  any  substantial 
difference  in  the  offense  of  breach  of  arrest  or  escape  from  confinement. 


offense  under  these  articles  shall  be- 
placed  in  confinement,  and  when 
charged  with  a  minor  offense  he  may 
be  placed  in  arrest.  Any  other  person 
subject  to  military  law  charged  with 
crime  or  with  a  serious  offense  under 
these  articles  shall  be  placed  in  con- 
finement or  in  arrest,  as  circumstances 
may  require ;  and  when  charged  with 
a  minor  offense  such  person  may  be 
placed  in  arrest.  Any  person  placed  in 
arrest  under  the  provisions  of  this  arti- 
cle shall  thereby  be  restricted  to  his 
barracks,  quarters  or  tent,  unless  such 
limits  shall  be  enlarged  by  proper  au- 
thority. Any  officer  who  breaks  his- 
arrest  or  who  escapes  from  confine- 
ment before  he  is  set  at  liberty  by 
proper  authority  shall  be  dismissed 
from  the  service  or  suffer  such  other 
punishment  as  a  court-martial  may 
direct ;  and  any  other  person  subject 
to  military  law  who  escapes  from 
confinement  or  who  breaks  his  arrest 
before  he  is  set  at  liberty  by  proper 
authority  shall  be  punished  as  a 
court-martial  may  direct." 


PROPOSED    LAW. 

ART.     70.    Arrest     and     confinement 
jH'itt/iiif/   trial    by   court-martial. — [!N- 

YKSTTGAT10X        OF        AND       ACTION        UPON 

CHARGES. — No  person  put  in  arrest 
shall  be  continued  in  confinement  more 
than  eight  days,  or  until  such  time  as 
a  court-martial  can  be  assembled.] 
When  any  person  subject  to  military 
law  is  arrested  or  confined  [put  in  ar- 
rest] for  the  purpose  of  trial  [except 
at  remote  military  posts  or  stations] 
the  officer  by  whose  order  this  is  done 
[he  is  arrested]  shall  see  that  a  copy 
of  the  charges  on  which  the  arrest  or 
confinement  is  based  [he  is  to  be  tried] 
i^s  served  upon  the  accused  party 
[him]  within  eight  days  after  his  ar- 
rest or  confinement,  and  it  is  the  duty 
of  the  officer  ordering  such  arrest  or 
confinement  to  expedite,  in  so  far  as  in 
him  lies,  the  speedy  trial  of  the  case. 
[and  that  he  is  brought  to  trial  within 
10  days  thereafter,  unless  the  neces- 


EXISTING  LAW. 

"  ART.  70.  INVESTIGATION  OF  AND  AC- 
TION UPON  CHARGES. — No  person  put  in 
arrest  shall  be  continued  in  confine- 
ment more  than  eight  days,  or  until 
such  time  as  a  court-martial  can  be 
assembled.  When  any  person  is  put  in 
arrest  for  the  purpose  of  trial,  except 
at  remote  military  posts  or  stations, 
the  officer  by  whose  order  he  is  ar- 
rested shall  see  that  a  copy  of  the 
charges  on  which  he  is  to  be  tried  is 
served  upon  him  within  eight  days 
after  his  arrest,  and  that  he  is  brought 
to  trial  within  10  days  thereafter,  un- 
less the  necessities  of  the  service  pre- 
vent such  trial ;  and  then  he  shall  be 
brought  to  trial  within  30  days  after 
the  expiration  of  said  10  days,  ir  a 
copy  of  the  charges  be  not  served,  or 
the  arrested  person  be  not  brought  to 
trial,  as  herein  required,  the  arrest 
shall  cease.  But  persons  released  from 
arrest,  under  the  provisions  of  this 


34 


article,  may  be  tried,  whenever  the 
exigencies  of  the  service  shall  permit, 
within  12  months  after  such  release 
from  arrest :  Provided,  That  in  time  of 
peace  no  person  shall,  against  his  ob- 
jection, be  brought  to  trial  before  a 
general  court-martial  within  a  period 
of  five  days  subsequent  to  the  service 
of  charges  upon  him." 


si  tics  of  the  service  prevent  such 
trial ;]  It  is  the  like  duty  of  all  other 
officers  having  to  do  with  the  trial  of 
the  case  to  expedite  it  in  every  prac- 
ticable way.  [and  then  he  shall  be 
brought  to  trial  within  30  days  after 
the  expiration  of  said  10  days.  If  a 
copy  of  the  charges  be  not  served,  or 
the  arrested  person  be  not  brought  to 
trial,  as  herein  required,  the  arrest 
shall  cease.]  If  the  trial  can  not,  for 
good  and  sufficient  reasons,  be  begun 
within  a  period  of  30  days  from  the 
date  of  arrest  or  confinement  the  im- 
mediate commanding  officer,  unless 
otherwise  ordered  by  superior  author- 
it)/,  shall  release  the  accused  from  ar- 
rest or  confinement.  But  persons  re- 
leased from  arrest  or  confinement  un- 
der the  provision  of  this  article  may 
be  tried,  whenever  the  exigencies  of 
the  service  shall  permit,  within  12 
months  after  such  release  from  arrest : 
Provided,  That  in  time  of  peace  no  per- 
son shall,  against  his  objection,  be 
brought  to  trial  before  a  general  court- 
martial  within  a  period  of  five  days 
subsequent  to  the  service  of  charges 
upon  him :  Provided  further,  That  me 
trial  judge  advocate  shall  serve  or 
cause  to  be  served  upon  the  accused  a 
copy  of  the  charges  upon  which  trial 
is  to  be  had  and  a  statement  of  such 
service  shall  be  entered  upon  the  rec- 
ord of  the  case  showing  the  date 
thereof." 

COMMENT. — The  present  article  70  calls  upon  local  commanders  to  do  the 
impossible.  The  changes  proposed  are  intended  to  make  the  law  conform  to 
good  practice  which  has  never  been  possible  under  old  article  70. 

ART.  71.  No  change. 

ABT.  72.  No  change. 

ART.  73.  No  change. 

ART.  74.  No  change. 

COMMENT. — In  the  Chamberlain  bill  article  73,  which  corresponds  to  existing 
article  74,  changes  the  punishment  from  dismissal  or  other  punishment  to  dis- 
missal and  other  punishment,  thus  making  dismissal  mandatory  for  this  offense. 


PROPOSED  LAW. 

"ART.  75.  MISBEHAVIOR  BEFORE  THE 
ENEMY. — Any  officer  or  soldier  who 
misbehaves  himself  before  the  enemy, 
runs  away,  or  shamefully  abandons 
or  delivers  up  or  by  any  misconduct, 
disobedience  or  neglect  endangers  the 
safety  of  any  fort,  post,  camp,  guard, 
or  other  command  which  it  is  his  duty 
to  defend,  or  speaks  words  inducing 
others  to  do  the  like,  or  casts  away 
his  arms  or  ammunition,  or  quits  his 
post  or  colors  to  plunder  or  pillage,  or 
by  any  means  whatsoever  occasions 
false  alarms  in  camp,  garrison,  or 
quarters,  shall  suffer  death  or  such 
other  punishment  as  a  court-martial 
may  direct." 

COMMENT. — The  change  is  merely  to  cover  conduct  not  now  included  but 
evidently  necessary  if  this  subject  matter  is  to  be  comprehensively  treated. 


EXISTING  LAW. 

"ART.  75.  MISBEHAVIOR  BEFORE  THE 
ENEMY. — Any  officer  or  soldier  who 
misbehaves  himself  before  the  enemy, 
runs  away,  or  shamefully  abandons 
or  delivers  up  any  fort,  post,  camp, 
guard,  or  other  command  which  it  is 
his  duty  to  defend,  or  speaks  words 
inducing  others  to  do  the  like,  or  casts 
away  his  arms  or  ammunition,  or  quits 
his  post  or  colors  to  plunder  or  pillage, 
or  by  any  means  whatsoever  occasions 
false  alarms  in  camp,  garrison,  or 
quarters,  shall  suffer  death  or  such 
other  punishment  as  a  court-martial 
may  direct." 


35 


PROPOSED  LAW. 


EXISTING    LAW. 


"ART.  76.  SUBORDINATES  COMPELLING  "ART.  76.  SUBORDINATES  COMPELLING 

COMMANDER  TO  SURRENDER. — Any  per-  COMMANDER    TO    SURRENDER. — If    any 

son  subject  to  military  law  who  com-  commander  of  any  garrison,  fort,  post, 

pels  or  attempts  to  compel  any  com-  camp,  guard,  or  other  command  is  com- 

iuauflcr    of    any    garrison,    fort,    post,  pelled,  by  the  officers  or  soldiers  under 

camp,   guard,   or   other   command,    to  his    command,   to    give   it   up   to    the 

give  it  up  to  the  enemy  or  to  abandon  enemy  or  to  abandon  it,  the  officers  or 

it  shall  be  punishable  with   death  or  soldiers  so  offending  shall  suffer  death 


or  such  other  punishment  as  a  court- 
martial  may  direct." 


such  other  punishment  as  a  court- 
martial  may  direct.  [If  any  com- 
mander of  any  garrison,  fort,  camp, 
guard,  or  other  command  is  compelled, 
by  the  officers  or  soldiers  under  his 
command,  to  give  it  up  to  the  enemy 
or  to  abandon  it,  the  officers  or  sol- 
diers so  offending  shall  suffer  death  or 
such  other  punishment  as  a  court- 
martial  may  direct.]  " 

COMMENT. — The  change  recommended  includes  an  attempt  as  well  as  a  suc- 
cessful effort  to  commit  this  grave  military  crime  and  extends  the  punishment 
to  all  persons  subject  to  military  law. 

ART.  77.  No  change. 

ART.  78.  No  change. 

ART.  79.  No  change. 

ART.  80.  No  change. 


PROPOSED  LAW. 

"ART.  81.  RELIEVING,  CORRESPONDING 
WITH,  OR  AIDING  THE  ENEMY. — Whoso- 


EXISTING  LAW. 

"ART.  81.  RELIEVING,  CORRESPONDING 
WITH,  OR  AIDING  THE  ENEMY. — Whoso- 


ever relieves  or  attempts  to  relieve  the  ever  relieves  the  enemy  with  arms, 
enemy  with  arms,  ammunition,  sup-  ammunition,  supplies,  money,  or  other 
plies/ money,  or  other  thing,  or  know-  thing,  or  knowingly  harbors  or  protects 
ingly  harbors  or  protects  or  holds  cor-  or  holds  correspondence  with  or  gives 
respondence  with  or  gives  intelligence  intelligence  to  the  enemy,  either  di- 
to  the  enemy,  either  directly  or  indi-  rectly  or  indirectly,  shall  suffer  death 
rectly,  shall  suffer  death  or  such  other  or  such  other  punishment  as  a  court- 
puni.shment  as  a  court-martial  or  mili-  martial  or  military  commission  may 
tary  commission  may  direct."  direct." 

COMMENT. — The  change  recommended  incorporates  an  attempt  as  well  as  a 
successful  effort  and  makes  it  punishable. 

ART.  82.  No  change. 

ART.  83.  No  change. 

ART.  84.  No  change. 

ART.  85.  No  change. 

ART.  86.  No  change. 

ART.  87.  No  change. 

ART.  88.  No  change. 

ART.  89.  No  change. 

ART.  90.  No  change. 

ART.  91.  No  change. 

ART.  92.  No  change. 

ART.  93.  No  change. 

ART.  94.  No  change. 


PROPOSED  LAW. 


EXISTING    LAW. 


"Airr.  95.  CONDUCT  UNBECOMING  AN 
OFFICER  AND  GENTLEMAN. — Any  officer 
or  cadet  who  is  convicted  of  conduct 
unbecoming  an  officer  and  a  gentleman 
shall  be  dismissed  from  the  service." 


"ART.  95.  CONDUCT  UNBECOMING  AN 
OFFICER  AND  GENTLEMAN. — Any  offi- 
cer or  cadet  who  is  convicted  of  con- 
duct unbecoming  an  officer  and  a  gen- 
tleman shall  be  dismissed  from  the 
service  and  shall  suffer  such  additional 
punishment  as  a  court-martial  may  di- 
rect." 

COMMENT. — Obviously  the  conduct  unbecoming  an  officer  and  gentleman  may 
be  of  a  character  to  demand  not  merely  expulsion  from  the  service  but  grave 
penalties  over  and  above  that. 


36 


ART.  96.  No  change. 
ART.  97.  No  change. 
ART.  98.  No  change. 
ART.  99.  No  change. 
ART.  100.  No  change. 
ART.  101.  No  change. 
ART.  102.  No  change. 
ART.  103.  No  change. 

PROPOSED    LAW. 

"  ART.  104.  DISCIPLINARY  POWERS  OF 
COMMANDING  OFFICERS. — Under  such 
regulations  as  the  Pre  ident  may  pre- 
scribe, and  which  he  may  from  time 
to  time  revoke,  alter,  or  add  to,  the 
commanding  officer  of  any  detach- 
ment, company,  or  higher  command 
may,  for  minor  offenses  [not  denied 
by  the  accused]  impose  disciplinary 
punishments  upon  persons  of  his  com- 
mand without  the  intervention  of  a 
court-martial,  unless  the  accu  ed  de- 
mands trial  by  court-martial. 

"  The  disciplinary  punishments  au- 
thorized by  this  article  may  include 
admonition,  reprimand,  withholding 
of  privileges,  extra  fatigue,  and  re- 
striction to  certain  specified  limits,  but 
shall  not  include  forfeiture  of  pay  or 
confinement  under  guard ;  except  that 
in  time  of  war  or  grave  public  emer- 
gency a  commanding  officer  of  the 
grade  of  brigadier  general  or  of  higher 
grade  may,  under  the  provisions  of  this 
article,  also  impose  upon  an  officer  of 
his  command  below  the  grade  of  major 
a  forfeiture  of  not  more  than  one-half 
of  such  officer's  monthly  pay  for  one 
man  tli.  A  person  punished  under 
authority  of  this  article,  who  deems 
his  punishment  unjust  or  dispropor- 
tionate to  the  offense,  may,  through  the 
proper  channel,  appeal  to  the  next  su- 
perior authority,  but  may  in  the  mean- 
time be  required  to  undergo  the  pun- 
ishment adjudged.  The  commanding 
officer  who  imposes  the  punishment, 
his  successor  in  command,  and  supe- 
rior authority  shall  have  power  to  miti- 
gate or  remit  any  unexecuted  portion 
of  the  punishment  The  imposition 
and  enforcement  of  disciplinary  pun- 
ishment under  authority  of  this  article 
for  any  act  or  ornis.-  ion  shall  not  be  a 
bar  to  trial  by  court-martial  for  a 
crime  or  offense  growing  out  of  the 
same  act  or  omission ;  but  the  fact  that 
a  disciplinary  punishment  has  been  en- 
forced may  be  shown  by  the  accused 
upon  trial,  and  \vhen  so  shown  shall 
be  considered  in  determining  the 
measure  of  punishment  to  be  adjudged 
in  the  event  of  a  finding  of  guilty." 

COMMENT. — The  existing  system  lacks  any  summary  and  effective  method 
of  punishing  officers  for  delinquencies  and  minor  offenses.  In  war  the  vast 
majority  of  company  officers  will  always  be  composed  of  men  from  civil  life 


EXISTING  LAW. 

"ART.  104.  DISCIPLINARY  POWERS  01 
COMMANDING  OFFICERS. — Under  such 
regulations  as  the  President  may  pre- 
scribe, and  which  lie  may  from  time  to 
time  revoke,  alter,  or  add  to,  the  com- 
manding officer  of  any  detachment, 
company,  or  higher  command  may,  for 
minor  offenses  not  denied  by  the  ac- 
cused, impose  disciplinary  punishments 
upon  persons  of  hi-;  command  with  jut 
the  intervention  of  a  court-martial, 
unless  the  accused  demands  trial  by 
court-martial. 

"  The  disciplinary  punishments  au- 
thorized by  this  article  may  include 
admonition,  reprimand,  withholding 
of  privileges,  extra  fatigue,  and  re- 
striction to  certain  specified  limits,  but 
;  hall  not  include  forfeiture  of  pay  or 
confinement  under  guard.  A  person 
punished  under  authority  of  mis 
article  who  deems  his  punishment  un- 
just or  disproportionate  to  the  offense 
may.  through  the  proper  channel,  ap- 
peal to  the  next  superior  authority, 
but  may  in  the  meantime  be  required 
to  undergo  the  punishment  adjudged. 
The  commanding  officer  who  imposes 
the  punishment,  his  successor  in  com- 
mand, and  superior  authority  shall 
have  power  to  mitigate  or  remit  any 
unexecuted  portion  of  the  punishment. 
The  imposition  and  enforcement  of 
disciplinary  punishment  under  author- 
ity of  this  article  for  any  act  or  omis- 
sion shall  not  be  a  bar  to  trial  by 
court-martial  for  a  crime  or  offense 
growing  out  of  the  same  act  or  omis- 
sion :  but  the  fact  that  a  disciplinary 
punishment  has  been  enforced  may  be 
shown  by  the  accused  upon  trial,  and 
when  so  shown  shall  be  considered  in 
determining  the  measure  of  punish- 
ment to  be  adjudged  in  the  event  of  a 
finding  of  guilty." 


37 


with  industrial  conceptions  of  discipline.  They  are  in  the  active  army  for  the 
war  only.  The  summary  method  of  stimulating  attention  to  duty  and  thorough- 
ness of  work  is  by  fine.  It  is  also  proposed  to  eliminate  the  existing  clause 
restricting  the  operation  of  this  section  to  offenses  "  not  denied  by  the  accused." 
No  reason  is  perceived  why  this  summary  discipline  should  be  restricted  as  in 
the  existing  article,  particularly  as  the  right  of  appeal  is  preserved. 


PROPOSED  LAW. 

"  ART.  105.  INJURIES  TO  PERSON  or 
[OF]  PROPERTY — REDRESS  OF. — When- 
ever complaint  is  made  to  any  com- 
manding officer  that  damage  has  been 
done  to  the  property  or  person  of  any- 
body [of  any  person]  or  that  his  prop- 
erty has  been  wrongfully  taken  by  per- 
sons subject  to  military  law,  the  com- 
manding officer  may  convene  [such 
complaint  shall  be  investigated  by]  a 
board  consisting  of  any  number  of  offi- 
cers from  one  to  three  ichich  shall  in- 
vestigate the  complaint  and  which, 
[which  board  shall  be  convened  by  the 
commanding  officer  and  shall  have] 
for  the  purpose  of  such  investigation, 
shall  hare  power  to  summon  witnesses 
and  examine  them  upon  oath  or  affir- 
mation, to  receive  depositions  or  other 
documentary  evidence,  and  to  assess 
the  damages  sustained  against  the  re- 
sponsible parties.  The  assessment  of 
damages  made  by  such  board  shall  be 
subject  to  the  approval  of  the  com- 
manding officer,  and  in  the  amount  ap- 
proved by  him  shall  be  stopped  against 
the  pay  of  the  offenders.  And  the  or- 
der of  such  commanding  officer  direct- 
ing stoppages  herein  authorized  shall 
be  conclusive  on  any  disbursing  officer 
for  the  payment  by  him  to  the  injured 
parties  of  the  stoppages  so  ordered. 

"  Where  the  offenders  can  not  be  as- 
certained, but  the  organization  or  de- 
tachment to  which  they  belong  is 
known,  stoppages  to  the  amount  of 
damages  inflicted  may  be  made  and 
assessed  in  such  proportion  as  may  be 
deemed  just  upon  the  individual  mem- 
bers thereof  who  are  shown  to  have 
been  present  with  such  organization  or 
detachment  at  the  time  the  damages 
complained  of  were  inflicted  as  deter- 
mined by  the  approved  findings  of  the 
board." 


EXISTING  LAW. 

"ART.  105.  INJURIES  TO  PERSON  OF 
PROPERTY  —  REDRESS  OF. — Whenever 
complaint  is  made  to  any  commanding 
officer  that  damage  has  been  done  to 
the  property  of  any  person,  or  that  his 
property  has  been  wrongfully  taken  by 
persons  subject  to  military  law,  such 
complaint  shall  be  investigated  by  a 
board  consisting  of  any  number  of  offi- 
cers from  one  to  three,  which  board 
shall  be  convened  by  the  commanding 
officer  and  shall  have,  for  the  purpose 
of  such  investigation,  power  to  sum- 
mon witnesses  and  examine  them  upon 
oath  or  affirmation,  to  receive  deposi- 
tions or  other  documentary  evidence, 
and  to  assess  the  damages  sustained 
agairst  the  responsible  parties.  The 
assessment  of  damages  made  by  such 
board  shall  be  subject  to  the  approval 
of  the  commanding  officer,  and  in  the 
amount  approved  by  him  shall  be 
stopped  against  the  pay  of  the  offend- 
c  rs.  And  the  order  of  such  command- 
ing officer  directing  stoppages  herein 
authorized  shall  be  conclusive  on  any 
disbursing  officer  for  the  payment  by 
him  to  the  injured  parties  of  the  stop- 
pages so  ordered. 


"  Where  the  offenders  can  not  be  as- 
certained, but  the  organization  or  de- 
tachment to  which  they  belong  is 
known,  stoppages  to  the  amount  of 
damages  inflicted  may  be  made  and 
assessed  in  such  proportion  as  may  be 
deemed  just  upon  the  individual  mem- 
bers thereof  who  are  shown  to  have 
been  present  with  such  organization  or 
detachment  at  the  time  the  damages 
complained  of  were  inflicted  as  deter- 
mined by  the  approved  findings  of  the 
board." 


COMMENT. — The  proposed  change  leaves  the  appointment  of  a  board  to  the 
discretion  of  the  commanding  officer  and  it  further  authorizes  the  assessment  of 
damages  to  make  good  injuries  to  persons. 

NOTE. — Maj.  Gen.  O'Ryan  dissents  from  the  majority  opinion  of  the  board 
that  article  105  should  not  be  modified.  He  proposes  the  following  amendment 
to  be  added  at  the  end  of  the  present  article : 

"  But  no  damage  against  any  officer,  soldier,  or  organization  shall  be  assessed 
wider  the  provisions  of  this  article  unless  notice  in  writing  of  the  proceedings 
has  been  given  such  officer,  soldier,  or  organization  and  an  opportunity  afforded 
to  be  heard  in  defense  before  the  board;  and  in  all  cases  of  assessment  the 
record  of  proceedings  shall  show  the  character  of  the  notice  given,  together  with 


38 

the  testimony  offered,  or  the  fact  that  after  notice  there  was  refusal  to  offer 
such  testimony." 

This  article  furnishes  a  convenient  and  what  may  be  termed  a  rough-and- 
ready  method  of  doing  justice  as  between  civilian  claimants  for  damages  and 
soldiers  and  organizations  charged  with  responsibility  therefor.  But  because 
the  powers  conveyed  are  so  radical  and  because  the  rights  of  soldiers  and  units 
appear  to  be  in  no  way  safeguarded,  the  article  not  only  opens  the  -way  to  abuse 
but,  in  fact,  has  resulted  in  gross  abuse.  Its  loose  references  to  "  the  command- 
ing officer  "  and  the  failure  to  provide  for  a  "  day  in  court "  for  those  who 
become  the  victims  of  its  provisions,  has  resulted  in  boards  making  assessments 
against  soldiers  and  units  which  not  only  had  no  opportunity  to  offer  defense 
or  explanation  but  did  not  even  know  of  the  existence  of  the  board  until  notice 
that  they  had  been  assessed  was  received.  Cases  have  occurred  where  units, 
having  left  a  camp  in  the  United  States  for  foreign  service,  were  so  assessed 
by  boards  appointed  by  "  the  commanding  officer  "  of  the  home  camp  after  the 
units  had  left  the  jurisdiction,  and  this  without  any  opportunity  to  be  heard. 

It  would  further  seem  that  the  provision  in  relation  to  the  assessment  of  pro- 
portional shares  of  damages  against  individual  members  shown  to  have  been 
present  with  a  unit  at  the  time  the  damages  were  inflicted  has  no  practical 
application  to  a  unit  larger  than  a  company.  Yet  it  was  attempted  to  be 
applied  in  this  war  to  regiments  and  even  larger  units.  Not  only  this,  but  such 
attempts  were  made  months  after  the  alleged  acts  wrhich  caused  the  damage, 
and  at  a  time  when  many  of  the  original  members  of  the  unit  had  been  killed, 
wounded,  or  transferred,  and  many  new  officers  and  men  had  joined,  and  when 
a  determination  of  the  men  who  had  constituted  the  personnel  of  the  command 
at  the  time  the  damage  claimed  was  suffered,  would  have  necessitated  an 
exhaustive  inquiry  based  on  former  muster  rolls.  Not  only  this,  but  after  the 
listing  of  such  names  there  remained  the  mathematical  computations  necessary 
to  apportion  the  regimental  share  of  the  alleged  damage  among  the  "  individual 
members  thereof,"  so  listed  in  order  that  such  several  sums  might  be  assessed 
as  "  stoppages."  The  whole  procedure  is  often  impracticable  of  enforcement  as 
presented  and  results  in  efforts  to  force  payment  from  the  organization  or  its 
officers  by  duress.  Under  such  circumstances  certainly  the  latter  should  have 
their  "  day  in  court,"  which  the  proposed  amendment  provides  for. 

I  think  Congress  should  make  provision  for  prompt  payment  of  damages  for 
honest  losses,  looking  to  soldiers  or  units  for  reimbursement  as  a  result  of  some 
fair  method  of  investigation  and  determination.  In  any  event,  as  a  preventive 
against  obnoxious  abuse,  I  recommend  the  inclusion  of  the  amendment  offered. 

ART.  106.  No  change. 

ART.  107.  No  change. 

ART.  108.  No  change.  , 

ART.  109.  No  change. 

ART.  110.  No  change. 

ART.  111.  No  change. 

PROPOSED  LAW.  EXISTING  LAW. 

"  ART.  112.  EFFECTS  OF  DECEASED  "  ART.  112.  EFFECTS  OF  DECEASED 
PERSONS — DISPOSITION  OF. — In  case  of  PERSONS — DISPOSITION  OF.— In  case  of 
the  death  of  any  person  subject  to  the  death  of  any  person  subject  to 
military  law,  the  commanding  officer  military  law,  the  commanding  officer 
of  the  place  of  command  will  permit  of  the  place  of  command  will  permit 
the  legal  representative  or  widow  of  the  legal  representative  or  widow  of 
the  deceased,  if  present,  to  take  the  deceased,  if  present,  to  take  pos- 
possession  of  all  his  effects  then  in  session  of  all  his  effects  then  in  camp 
camp  or  quarters,  and  if  no  legal  rep-  or  quarters,  and  if  no  legal  represen- 
resentative  or  widow  be  present  the  tative  or  widow  be  present  the  corn- 
commanding  officer  shall  direct  a  sum-  manding  officer  shall  direct  a  summary 
mary  court  to  secure  all  such  effects;  court  to  secure  all  such  effects;  and 
and  said  summary  court  shall  have  said  summary  court  shall  have  author- 
authority  to  collect  and  receive  any  ity  to  collect  and  receive  any  debts  due 
debts  due  decedent's  estate  by  local  decedent's  estate  by  local  debtors; 
debtors,  and  to  pay  the  undisputed  and  as  soon  as  practicable  after  the 
local  creditors  of  decedent,  in  so  far  collection  of  such  effects  said  sum- 
as  any  money  belonging  to  the  de-  mary  court  shall  transmit  such  ef- 
ceased  which  may  come  into  said  sum-  fects,  and  any  money  collected, 
mary  court's  possession  under  this  through  the  Quartermaster  Depart  - 
article  will  permit,  taking  receipts  ment,  at  Government  expense,  to  the 


39 


therefor  for  file  with  said  court's  final 
report  upon  its  transactions  to  the 
War  Department;  and  as  soon  as  prac- 
ticable after  the  collection  of  such 
effects  said  summary  court  shall  trans- 
mit such  effects,  any  money  collected, 
through  the  Quartermaster  Depart- 
ment at  Government  expense  to  the 
widow  or  legal  representative  of  the 
deceased,  if  such  be  found  by  said 
court,  or  to  his  son,  daughter,  father : 
Prorided,  The  father  has  not  aban- 
doned the  support  of  his  family,  mother, 
brother,  sister,  or  the  next  of  kin  in 
the  order  named,  if  such  be  found  by 
said  court,  or  the  beneficiary  named 
in  the  ivill  [byl  of  the  deceased,  if 
such  be  found  by  said  court,  and  said 
court  shall  thereupon  make  to  the  War 
Department  a  full  report  of  its  trans- 
actions;  but  if  there  be  none  of  the 
persons  hereinabove  named,  or  such 
persons  or  their  addresses  are  not 
known  to,  or  readily  ascertainable  by, 
said  court,  and  the  said  court  shall 
so  find,  said  summary  court  shall 
have  authority  to  convert  into  cash, 
by  public  or  private  sale,  not  earlier 
than  30  days  after  the  death  of  the 
deceased,  all  effects  of  the  deceased 
except  sabers,  insignia,  decorations, 
medals,  watches,  trinkets,  manu- 
scripts, and  other  articles  valuable 
chiefly  as  keepsakes ;  and  as  soon  as 
practicable  after  converting  such  ef- 
fects into  cash,  said  summary  court 
shall  deposit  with  the  proper  officer, 
to  be  designated  in  regulations,  any 
cash  belonging  to  decedent's  estate, 
and  shall  transmit  a  receipt  for  such 
deposits,  any  will  or  other  papers  of 
value  belonging  to  the  deceased,  any 
sabers,  insignia,  decorations,  medals, 
watches,  trinkets,  manuscripts,  and 
other  articles  valuable  chiefly  as 
keepsakes,  together  with  an  inven- 
tory of  the  effects  secured  by  said 
summary  court,  and  a  full  account 
of  its  transactions  to  the  War  De- 
partment for  transmission  to  the 
Auditor  for  the  War  Department  for 
action  as  authorized  by  law  in  the 
settlement  of  accounts  of  deceased 
officers  and  enlisted  men  of  the  Army. 
"  The  provisions  of  this  article  shall 
be  applicable  to  inmates  of  the  United 
States  Soldiers'  Home  who  die  in  any 
United  States  military  hospital  out- 
side of  the  District  of  Columbia, 
where  sent  from  the  home  for  treat- 
ment." 

ART.  113.  No  change. 
ART.  114.  No  change. 
ART.  115.  No  change. 
ART.  116.  No  change. 
ART.  117.  No  change. 
ART.  118.  No  change. 


widow  or  legal  representative  of  the 
deceased,  if  such  be  found  by  said 
court,  or  to  his  son,  daughter,  father, 
mother,  brother,  or  sister,  in  the  or- 
der named,  if  such  be  found  by  said 
court,  or  to  the  beneficiary  named  by 
the  deceased,  if  such  be  found  by 
said  court,  and  such  court  shall  there- 
upon make  to  the  War  Department  a 
'full  report  of  its  transactions;  but 
if  there  be  none  of  the  persons  here- 
inabove named,  or  such  persons  or 
their  addresses  are  not  known  to,  or 
readily  ascertainable  by,  said  court, 
and  the  court  shall  so  find,  said  sum- 
mary court  shall  have  authority  to 
convert  into  cash,  by  public  or  private 
sale,  not  earlier  than  30  days  after 
the  death  of  the  deceased,  all  effects 
of  the  deceased,  except  sabers,  insig- 
nia, decorations,  medals,  watches, 
trinkets,  manuscripts,  and  other  ar- 
ticles valuable  chiefly  as  keepsakes ; 
and  as  soon  as  practicable  after  con- 
verting such  effects  into  cash  said 
summary  court  shall  deposit  with  the 
proper  officer,  to  be  designated  in 
regulations,  any  cash  belonging  to  de- 
cedent's estate,  and  shall  transmit  a 
receipt  for  such  deposits,  any  will  or 
other  papers  of  value  belonging  to 
the  deceased,  any  sabers,  insignia, 
decorations,  medals,  watches,  trin- 
kets, manuscripts,  and  other  articles 
valuable  chiefly  as  keepsakes,  to- 
gether with  an  inventory  of  the  ef- 
fects secured  by  said  summary  court, 
and  a  full  account  of  its  transactions 
to  the  War  Department  for  transmis- 
sion to  the  Auditor  for  the  War  De- 
partment for  action  as  authorized  by 
law  in  the  settlement  of  the  accounts 
of  deceased  officers  and  enlisted  men 
of  the  Armv. 


"  The  provisions  of  this  article  shall 
be  applicable  to  inmates  of  the  United 
States  Soldiers'  Home  who  die  in  any 
United  States  military  hospital  out- 
side of  the  District  of  Columbia, 
where  sent  from  the  home  for  treat- 
ment." 


40 


PKOPOSEI)  LAW. 

"ART.  119.  RANK  AND  PRECEDENCE 
AMONG  REGULARS,  MILITIA,  AND  VOL- 
UNTEERS.— That  in  time  of  war  or  pub- 
lic danger,  when  two  or  more  officers 
of  the  same  grade  are  on  duty  in  the 
same  h'eld,  department,  or  command, 
or  of  organizations  thereof,  the  Presi- 
dent may  assign  the  command  of  the 
forces  of  such  field,  department,  or 
command,  or  of  any  organization 
thereof,  without  regard  to  seniority  of 
rank  in  the  same  grade.  In  the  ab- 
sence of  such  assignment  by  the  Presi- 
dent, officers  of  the  same  grade  but 
icith  different  dates  of  commission 
shall  rank  and  have  precedence  ac- 
cordingly, the  elder  date  giving  sen- 
iority; if  of  the  same  grade  and  date 
of  conunixxioH  tliey  shall  rank  and 
have  precedence  in  the  following  order, 
[without  regard  to  date  of  rank  or 
commission  as  between  officers  of  dif- 
ferent classes,]  namely :  First,  officers 
of  the  Regular  Army  and  officers  of 
the  Marine  Corps  detached  for  service 
with  the  Army  by  order  of  the  Presi- 
dent ;  second,  officers  of  forces  drafted 
or  called  into  the  service  of  the  United 
States:  and,  third,  officers  of  the  vol- 
unteer forces:  Provided,  That  officers 
of  the  Regular  Army  holding  commis- 
sions in  forces  drafted  or  called  into 
the  service  of  the  United  States  or  in 
the  volunteer  forces  shall  rank  and 
have  precedence  under  said  commis- 
sions as  if  they  were  commissions  in 
the  Regular  Army ;  the  rank  of  officers 
of  the  Regular  Army  under  commis- 
sions in  the  National  Guard  as  such 
shall  not,  for  the  purposes  of  this 
article,  be  held  to  antedate  the  accept- 
ance of  such  officers  into  the  service 
of  the  United  States  under  said  com- 
missions." 

COMMENT. — This  section  was  amended  in  its  present  form  at  the  time  of  the 
recent  revision.  The  effect  was  to  give  preference  not  only  to  officers  of  the 
Regular  Army  in  each  grade,  over  those  of  the  same  grade  appointed  at  the  same 
time  from  sources  other  than  the  Regular  Army,  but  to  give  seniority  and  pref- 
erence to  all  other  regular  officers  who  at  any  subsequent  time  might  be  pro- 
moted to  an  advanced  grade  over  all  the  nonregular  officers  already  in  such 
advanced  grade.  Under  this  article  the  nonregular  officer  during  this  war 
descended  in  his  lineal  rank  as  he  gained  in  experience  and  length  of  service 
due  to  the  appointment  with  the  expansion  of  the  Army,  of  additional  regular 
officers  in  the  grade.  Officers  of  the  Army  not  holding  Regular  Army  commis- 
sions found  themselves  suddenly  junior  to  officers  who  had  been  their  subordi- 
nates, for  the  latter  officers  upon  promotion  to  the  higher  grade  were,  by  virtue 
of  this  provision,  jumped  over  all  in  the  advanced  grade  who  were  not  originally 
of  the  Regular  Army. 

The  provision  criticized  was  one  of  the  causes  wThich  rendered  abortive  the 
^attempt  to  create  during  the  war  one  army  dominated  by  one-army  spirit. 

ART.  120.  No  change. 

ART.  121.  No  change. 


EXISTING  LAW. 

"ART.  119.  RANK  AND  PRECEDENCE 
AMONG  REGULARS,  MILITIA,  AND  VOL- 
UNTEERS.— That  in  time  of  war  or  pub- 
lic danger,  when  two  or  more  officers 
of  the  same  grade  are  on  duty  in  the 
same  field,  department,  or  command, 
or  of  organizations  thereof,  the  Presi- 
dent may  assign  the  command  of  the 
forces  of  such  field,  department,  or 
command,  or  of  any  organization 
thereof,  without  regard  to  seniority  of 
rank  in  the  same  grade.  In  the  ab- 
sence of  such  assignment  by  the  Presi- 
dent, officers  of  the  same  grade  shall 
rank  and  have  precedence  in  the  fol- 
lowing order,  without  regard  to  date 
of  rank  or  commission  as  between 
officers  of  different  classes,  namely : 
First,  officers  of  the  Regular  Army  and 
officers  of  the  Marine  Corps  detached 
for  service  with  the  Army  by  order  of 
the  President ;  second,  officers  of  forces 
drafted  or  called  into  the  service  of 
the  United  States;  and,  third,  officers 
of  the  volunteer  forces :  Provided, 
That  officers  of  the  Regular  Army 
holding  commissions  in  forces  drafted 
or  called  into  the  service  of  the  United 
States  or  in  the  volunteer  forces  shall 
rank  and  have  precedence  under  said 
commissions  as  if  they  were  commis- 
sions in  the  Regular  Army:  the  rank 
of  officers  of  the  Regular  Army  under 
commissions  in  the  National  Guard  as 
such  shall  not,  for  the  purpose  of  this 
article,  be  held  to  antedate  the  ac- 
ceptance of  such  officers  into  the  serv- 
ice of  the  United  States  under  said 
commissions." 


[250.03,  A.  G.  O.] 


O 


— — 


JUN  29  592 
JUN 

- 


YC  63096' 


(J  R-  ff  i 


3291 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


